Global Military Products, Inc.

Decision

Matter of: Global Military Products, Inc.

File: B-423175.2

Date: February 25, 2025

DIGEST

Protest challenging the agency’s award of a sole-source contract pursuant to temporary acquisition authority is denied where the record demonstrates the agency’s written determination and findings (D&F) was sufficient to support the use of the authority for other than full and open competitive procedures.

Global Military Products, Inc. (GMP), a small business of Tampa, Florida, protests the Department of the Army, U.S. Army Materiel Command’s method for awarding sole-source contract No. W519TC-25-F-0015, to Repkon USA Defense LLC, also located in Tampa, Florida, for the design, construction, and commissioning of a domestic trinitrotoluene (TNT) facility. The protester primarily argues that the agency improperly relied on extraordinary authority to award the contract without full and open competition.

We deny in part, and dismiss in part, the protest.

BACKGROUND

On September 28, 2023, the Army published a sources sought notice via the System for Award Management (SAM), seeking information from interested sources for the design, construction, and commissioning of a TNT (2,4,6-trinitrotoluene) production facility within the continental United States (CONUS).[1] AR, Tab 11, Sept. 28 Notice at 3. The notice stated that the targeted production capacity is five to fifteen million pounds of TNT per year. Id. On December 19, 2023, the Army published an updated sources sought notice on SAM that refined the information being sought. AR, Tab 14, December 19 Notice. This notice indicated that the Army considered schedule to be of primary importance, with a preference for completion of construction and commissioning within 36 months of contract award, and a no-later-than completion date of 48 months after award. Id. at 4. On February 20, 2024, GMP responded to the notice.

On June 7, 2024, the Army again updated the sources sought notice, stating that the Government “intends to utilize the information submitted in response to this sources sought notice to make a non-competitive, sole source contract award(s) under the temporary acquisition authorizations provided in Class Deviation 2024-O0005, paragraph B(1), for covered contracts related to Ukraine, Taiwan, and Israel.”[2] AR, Tab 19, June 7 Notice at 3. The notice also provided that the agency “intends for this sole source action to include a contract(s) for the design, construction, and commissioning of the TNT facility, as well as follow-on production.” Id. GMP provided the agency with information to supplement its February 2024 sources sought response on June 11, 2024 (responding to the agency’s questions about company owned company operated (COCO) options), June 28, 2024 (addressing developments since the February submission, additional details for situational awareness, and an updated schedule), and July 25, 2024 (providing additional information regarding discussions held with United States-based companies to enable supporting a COCO model for the TNT facility). See Protest at 4‑5.

On August 19, 2024, the agency issued an addendum to the sources sought notice, advising that the agency “intends to assess and compare the information submitted in response to the sources sought (including all updates) and thereon make a determination as to which technology, technology provider, teaming arrangement, and facility location, as well as other aspects logically encompassed therein, would be in the public’s best interest for the award and execution of a sole source contract for the design, build, and commissioning of a TNT facility.” AR, Tab 22, August 19 Notice at 3. On September 3, 2024, GMP responded by providing the Army with additional information regarding its proposed technology, proposed teaming arrangement, and proposed process, as well as its estimated total proposed cost/price. See generally AR, Tab 25, GMP Resp. to August 19 Notice.

On November 6, 2024, the Army awarded a sole-source contract and delivery order to Repkon in the amount of $435,000,000 for the design, build, and commissioning of a TNT facility in Graham, Kentucky. AR, Tab 4, Award Synopsis at 3; Tab 2, Contract; Tab 3, Delivery Order. On November 13, the Army posted a synopsis of the contract via SAM. AR, Tab 4, Award Synopsis; COS/MOL at 27. Thereafter, GMP filed this protest with our Office on November 15.

DISCUSSION

GMP challenges the Army’s sole-source contract award to Repkon on multiple bases. First, the protester raises several arguments that the Army’s award of a TNT facility contract using class deviation 2024‑O0005 and the public interest exception to the Competition in Contracting Act of 1984 (CICA) was improper.[3] Second, GMP contends that the agency’s evaluation of GMP’s “proposal” was unreasonable.[4] For the reasons discussed below, we deny the protester’s allegations that it was improper for the Army to use the class deviation to award a sole-source contract. We dismiss the remaining protest ground for failure to state a valid basis of protest.

Timeliness

GMP argues that the Army’s award of a TNT facility contract using class deviation 2024‑O0005 and the public interest exception to CICA was improper because a TNT facility procurement fails to meet the class deviation’s and statute’s definition of a covered contract. Protest at 6-9.

The Army and intervenor argue the protest should be dismissed as untimely filed because the protest was filed more than 10 calendar days after the protester knew or should have known the basis of protest. Joint Req. for Dismissal at 1‑2. They assert that the Army published its intent to award a contract on a non-competitive basis using the sole-source authority of class deviation 2024-O0005, for the design, construction, and commissioning of the TNT facility, and follow-on production, on June 7, 2024. AR, Tab 19, June 7 Notice at 3. GMP did not file its protest until November 15. The agency and intervenor argue that the protest is untimely because it was filed more than 10 calendar days after the protester knew or should have known the agency’s method for awarding the sole-source contract.

The protester does not dispute that the agency’s June 7 sources sought notice provided notification of its intent to award a sole source contract on a non-competitive basis using the authority of class deviation 2024-O0005. Rather, the protester contends that its protest is timely because it was filed within 10 calendar days of the date the agency announced the sole-source contract award to Repkon. Resp. to Req. for Dismissal at 4. In this regard, the protester asserts that GMP could not have protested the June 7 sources sought notice because “protesting pre-solicitation notices [, such as a sources sought notice,] falls outside of GAO’s bid protest jurisdiction.” Id. The protester maintains that had it protested within 10 days of the June 7 sources sought notice, “GAO would have dismissed the protest as a premature protest that merely anticipates improper agency action.” Id. at 6. As discussed below, we decline to dismiss this protest as untimely.

The jurisdiction of our Office is established by the bid protest provisions of the Competition in Contracting Act (CICA), 31 U.S.C. §§ 3551‑3557. These provisions, and our decisions interpreting these provisions, make clear that our Office lacks the jurisdiction to review a protester’s challenge to the terms of a pre‑solicitation notice, such as a sources sought notice, because the agency has not issued a solicitation or committed a course of action otherwise reviewable by our Office. 31 U.S.C. § 3551(1); see F-Star Zaragosa Port, LLC; F-Star Socorro Holding, LLC, B‑417414, B-417414.2, Apr. 15, 2019, 2019 CPD ¶ 148 at 2; Lockheed Martin Sys. Integration--Owego, B‑287190.2, B‑287190.3, May 25, 2001, 2001 CPD ¶ 110 at 15 n.10. Accordingly, we generally do not require protesters to challenge the terms of a sources sought notice prior to award because such protests merely anticipate improper agency action and, as such, are premature.[5] See F-Star Zaragosa Port, LLC; F-Star Socorro Holding, LLC, supra.

Based on the foregoing, we have no basis to dismiss this protest as untimely. Contrary to the position taken by the intervenor and agency, our Regulations did not require GMP to file its protest within 10 days of the June 7 notice; instead, they required GMP to file its protest within 10 days of when it knew, or should have known, of the award to Repkon on November 6. 4 C.F.R. 21.2(b); see F-Star Zaragosa Port, LLC; F-Star Socorro Holding, LLC, supra. Because GMP filed its protest on November 15, its protest is timely.

Applicability of Public Interest Exception to Competition

GMP primarily argues that the Army’s award of a TNT facility contract using class deviation 2024 O0005 and the public interest exception to CICA was improper. Specifically, GMP argues that class deviation 2024-O0005 and CICA’s public interest exception are inapplicable because a TNT facility procurement fails to meet the class deviation’s and statute’s definition of a covered contract. Protest at 6-9. For the reasons discussed below, we find no basis to sustain the protest.[6]

Covered Contract

As a general matter, and as explained above, CICA requires procuring agencies to engage in full and open competition. 10 U.S.C. § 3201(a). There are, however, seven exceptions to the general requirement that permit agencies to engage in contracting without providing for full and open competition. The “public interest” exception, at issue here, permits an agency to use other than full and open competitive procedures when the head of the agency “determines that it is necessary in the public interest to use procedures other than competitive procedures in the particular procurement concerned,” and further notifies Congress in writing of that determination not less than 30 days before the award of the contract. 10 U.S.C. § 3204(a)(7); see also Federal Acquisition Regulation (FAR) 6.302-7. If using this exception, the authorizing official must make a written D&F supporting use of the exception that “set[s] forth enough facts and circumstances to clearly and convincingly justify the specific determination made.” FAR 6.302-7(c)(1), 1.704; Sikorsky Aircraft Corp., B‑403471, B-403471.3, Nov. 5, 2010, 2010 CPD ¶ 271 at 4.

Generally, our Office will review a D&F issued by an agency in support of the public interest exception to determine whether the D&F provides, on its face, a clear and convincing justification that the restricted competition furthers the public interest identified. We consider a protester’s arguments that the D&F relies on facts that have no relation to the stated public interest, or that the D&F relies on materially inaccurate information. Asiel Enterprises, Inc., B-408315.2, Sept. 5, 2013, 2013 CPD ¶ 205 at 5. We will not, however, sustain a protest based on the protester’s disagreement with the conclusions set forth in the D&F. Sikorsky Aircraft Corp., supra. at 5.

Furthermore, in construing the meaning of statutes, our Office will “begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 175 (2009); see Curtin Mar. Corp., B-417175.2, Mar. 29, 2019, 2019 CPD ¶ 117 at 9. To this end, our Office applies the “plain meaning” rule of statutory interpretation. See, e.g., Oracle America, Inc., B-416061, May 31, 2018, 2018 CPD ¶ 180 at 16.

As relevant here, the fiscal year (FY) 2023 and FY 2024 National Defense Authorization Acts (NDAAs) amended the requirements for the Department of Defense’s use of the public interest exception to full and open competition as prescribed by statute and in the FAR. These modifications granted “temporary authorizations” for more flexible acquisition procedures in response to world events and conflicts in which the United States has an interest, including events taking place with respect to Ukraine, Israel, and Taiwan. See Pub. L. No. 117-263, § 1244. In this regard, the NDAAs established that an agreement meeting the definition of “covered agreement” may be presumed to be in the public interest for the purpose of meeting the public interest exception to competition. Id. A “covered agreement” includes contracts: (1) to build or replenish the stocks of critical munitions and other defense articles of the Department of Defense; (2) to provide materiel and related services to foreign allies and partners that have provided support to Ukraine, Taiwan, or Israel; or (3) to provide materiel and related services to Ukraine, Taiwan, or Israel. See id.; Department of Defense Memorandum, Class Deviation--Temporary Authorizations for Covered Contracts Related to Ukraine, Taiwan, and Israel (2024).

Our Office has previously concluded that the plain, unambiguous language of the statutes is clear--there is a presumed public interest in building or replenishing stocks of defense articles and critical munitions, and providing materiel and services in support of Ukraine, Taiwan, and Israel and the foreign allies that have provided these countries with support. Mistral, Inc., B-422905, B‑422905.2, Dec. 13, 2024, 2025 CPD ¶ 6 at 10. Accordingly, for contracts for these types of requirements, called “covered agreements” or “covered contracts,” Congress granted Department of Defense agencies temporary authorization to use other than competitive procedures when conducting these procurements. Id. Because Congress has expressly identified a public interest and prescribed flexibility in conducting these procurements, our review is limited to considering whether the execution of the D&F document establishes that the procurement meets the definition of a “covered contract” as defined by the statute and implemented by regulation. Id.

Here, the agency executed the D&F document on October 7, 2024. The D&F stated that the Army would award Repkon an indefinite-delivery, indefinite-quantity contract for the design, construction, commission, and operation of a five million pound per year TNT production capability at a commercial explosives site in Graham, Kentucky. AR, Tab 5, Army D&F at 2, 7. The D&F explained that the contract has a potential period of performance of 14 years, consisting of a 4-year base period to support the facility design and construction effort and two 5-year option periods for follow-on production orders to be placed, with an estimated total contract value of $873,169,441. Id. at 7.

To support its determination to use the public interest exception to full and open competition, the D&F described the various findings made by the Army. The D&F found that the intended contract for the establishment of a CONUS TNT capability (through construction of a facility and follow-on production) is a “covered contract” because the CONUS TNT capability will be utilized to rapidly replenish DOD stocks of critical munitions (including 155 millimeters and 105 millimeters artillery, cratering charges, 2.75 inch rockets, grenades, and mortars) that were provided to Ukraine, and to potentially provide materiel and related services to Ukraine, Taiwan, and Israel, or any other foreign allies and partners who have provided support thereto. Id. at 7-8.

The D&F further detailed that it was “imperative” that the agency issue the subject sole-source contract to Repkon to ensure the “rapid replenishment of the DOD’s depleted inventory stemming from the years-long support of Ukraine to date” as well as the “continuing need to meet new demand arising from the Ukraine and Israeli counter-offensives into the foreseeable future,” which the Army anticipates “will increase steadily.” Id. at 8. The D&F noted that future initiatives “in support of the conflicts in Ukraine, Taiwan, and Israel are expected” and that the “depleted inventory, coupled with existing demand across all the services, requires an urgent award to initiate the procurement of a CONUS TNT capability in order to ensure the [DOD] will be able to meet future needs of 155 [millimeters] artillery and other TNT-based critical munitions.” Id. The D&F provided that “this will not only support national security interests in future years once production at the new facility commences,” but it also “provides DOD with the confidence it needs now to continue providing extended support to Ukraine, Taiwan, and Israel, knowing that there will be a near-future ability to replenish stocks that we may need in our own defense.” Id.

The protester disagrees with the Army’s conclusion that the contract for a CONUS TNT facility is a “covered contract.” GMP asserts that the contract, which includes building the TNT facility, is not a covered contract per the statutory language because “[w]hile TNT is used in ammunition, such as the M795 artillery shells or other aircraft bombs, the facility itself is not a munition.” Protest at 8. In this regard, the protester contends that the “extraordinary authority that Congress granted to the Department of Defense to enter into contracts ‘to build or replenish the stocks of critical munitions and other defense articles of the Department’ extends solely to contracts for munitions or defense articles,” and not to “contracts for the construction of facilities to build components, subcomponents, or raw materials of munitions or other defense articles.” Comments & Supp. Protest at 2. The Army responds that the statutory language permits the “reasonable and necessary acquisitions of components, raw materials, facility capacity increases, etc., which ultimately have the logical end result of building and replenishing stocks of critical munitions and defense articles.” Supp. COS/MOL at 3.

We find the Army’s D&F sufficiently demonstrates that the Army’s use of the public interest exception to full and open competition was in accordance with the prescribing statute and regulations. As explained above and relevant here, a “covered contract” includes contracts “to build or replenish the stocks of critical munitions and other defense articles of the Department of Defense[.]” See Pub. L. No. 117-263, § 1244. While the protester’s argument essentially is that a “covered agreement” applies only to contracts to acquire end items of supply which are critical munitions or defense articles, the plain, unambiguous language of the statute does not include such a limitation. Id. Rather, the language specifies that a “covered agreement” includes contracts “to build or replenish the stocks of critical munitions and other defense articles of the Department of Defense[.]” Id.

Here, the D&F supports the agency’s conclusion that the TNT facility contract and follow-on production constituted a “covered contract.” The D&F found that the intended contract for the establishment of a CONUS TNT capability (through construction of a facility and follow-on production) is a “covered contract” because the CONUS TNT capability will be utilized to rapidly replenish DOD stocks of critical munitions (including 155 millimeters and 105 millimeters artillery, cratering charges, 2.75 inch rockets, grenades, and mortars) that were provided to Ukraine. Id. at 8. In this instance, it is necessary for the Army to construct a facility with TNT capability in order to “build or replenish the stocks of critical munitions.” Id. The D&F sufficiently explained that the end items being procured--i.e., artillery, cratering charges, rockets, grenades, and mortars--are critical munitions, and because the document otherwise explained that the contract will “replenish DOD stocks of [these] critical munitions,” we find no basis to disturb the agency’s conclusion in this regard.[7] This protest ground is denied.

Army Evaluation

GMP argues that the Army unreasonably evaluated its “proposal,” and as a result, made an improper source selection when comparing GMP’s solution for a plant in Carthage, Missouri, to Repkon’s solution for a plant in Graham, Kentucky. Comments & Supp. Protest at 20-23. Specifically, the protester contends that the agency unreasonably assigned GMP’s “proposal” a rating of “4” for its ability to absorb fixed overhead through commercial sales at its site in Carthage, Missouri, which was a consideration for the Army with regard to “viability and efficiency.” Comments & Supp. Protest at 21‑22. GMP points out that an internal agency reference suggested that the agency would assign only ratings of “1,” “3,” or “5.” Id. at 21; see AR, Tab 28, Viability Matrix.

The agency requests dismissal of this protest ground, arguing that it fails to state a valid basis of protest. For the reasons discussed below, we agree and dismiss the protest on this basis.

The jurisdiction of our Office is established by the bid protest provisions of the Competition in Contracting Act of 1984, 31 U.S.C. §§ 3551-3557. Our role in resolving bid protests is to ensure that the statutory requirements for full and open competition are met. Cybermedia Techs., Inc., B-405511.3, Sept. 22, 2011, 2011 CPD ¶ 180 at 2. To achieve this end, our Bid Protest Regulations, 4 C.F.R. § 21.1(c)(4) and (f), require that a protest include a detailed statement of the legal and factual grounds for the protest, and that the grounds stated be legally sufficient. These requirements contemplate that protesters will provide, at a minimum, either allegations or evidence sufficient, if uncontradicted, to establish the likelihood that the protester will prevail in its claim of improper agency action. Midwest Tube Fabricators, Inc., B-407166, B-407167, Nov. 20, 2012, 2012 CPD ¶ 324 at 3.

GMP’s argument--that the improper rating of its “proposal” as “4” instead of “5” for its ability to absorb fixed overhead through commercial sales at its site in Carthage, Missouri, resulted in an improper source selection when comparing GMP’s solution for a plant in Carthage, Missouri, to Repkon’s solution for a plant in Graham, Kentucky--is based on information contained in an internal agency document, not information in the D&F. See AR, Tab 28, Viability Matrix (assessing commitment to affordable TNT pricing and ability to absorb fixed overhead through commercial sales and on-site efficiencies). In addition, the protester’s argument is based on an inaccurate premise that this was a competitive acquisition, where the Army was required to evaluate proposals under a solicitation’s evaluation factors and, after comparing proposals against each other, select the awardee based upon an announced source selection methodology. As the agency points out in response to the protest, however, the Army did not justify its use of the public interest exemption in the D&F based on price or a competitive trade-off decision, nor was it required to do so. Supp. COS/MOL at 7 n.6.

As noted above, in reviewing a D&F issued by an agency in support of the public interest exception, we consider a protester’s arguments that the D&F relies on facts that have no relation to the stated public interest, or that the D&F relies on materially inaccurate information, but we will not sustain a protest based on the protester’s disagreement with the conclusions set forth in the D&F. Asiel Enters., Inc. supra at 5. Because this protest ground does not challenge the underlying facts relied upon by the agency to justify the public interest exemption or provide a basis to conclude that the D&F relied on materially inaccurate information, the protester has failed to set forth a clear statement articulating a factual and legal basis in support of its argument. Accordingly, we dismiss this ground for failure to state a valid basis of protest. See DGCI Corp., B-422316.2, May 6, 2024, 2024 CPD ¶ 113 at 4; C.F.R. §§ 21.1(c)(4), (f).

The protest is denied in part and dismissed in part.

Edda Emmanuelli Perez
General Counsel