Challenging an Agency’s Determination of Urgent and Compelling Need Can be an Uphill Battle
Even when agencies use simplified acquisition procedures, they generally must maximize competition to the extent practicable. There is, however, an exception to this default rule if only one source is reasonably available based on the urgency of requirements or other grounds. Unfortunately, as the recent Government Accountability Office (GAO) decision in Summit Technologies, Inc., B-419126; B-419126.2 (November 19, 2020), reminds us, offerors face a high bar when seeking to challenge a contracting officer’s determination that only one source is reasonably available.
The case involved a procurement for experimentation support services for the U.S. Army’s Cyber Battle Lab (CBL). The Army issued its initial request for proposals (RFP) for the requirement in February 2020 and in July awarded a contract based on that RFP to Ad Hoc Research Associates, LLC (Ad Hoc). The period of performance for the awarded contract began on July 30, 2020. Summit Technologies, Inc. (Summit) protested that award on August 10 and, as a result, work on the contract was suspended. Four days later, the Army issued a new RFP directly to Ad Hoc seeking substantially the same services but only for a maximum of four months. Ad Hoc submitted a responsive proposal that same day and the Army instructed Ad Hoc to proceed with performance on August 17. Final execution of the awarded “bridge” contract did not occur until August 28.
By themselves, these facts certainly make it sound like the Army is running roughshod over the competition requirement in this case. After all, when faced with a protest of its original award decision, it almost immediately found another way to award the work to Ad Hoc! Of course, that’s not the entire story. And depending on the actual facts and circumstances, together with the discretion afforded contracting officers, it can be very difficult to make such an argument even if it seems strong on its face.
It turns out that, at about the same time it was putting Ad Hoc to work and finalizing the contract award, the Army was also preparing and approving a sole-source justification and approval (J&A) document, citing unusual and compelling urgency. The Army cited the negative impact on mission readiness that would result from a “break” or loss of functionality and argued that Ad Hoc is the only vendor that can continue to provide uninterrupted support during the stay. For example, the subject services provide vital support to an environment that provides critical collaboration capabilities to 23 separate Department of Defense (DoD) sites. The J&A also explains that the bridge contract will provide critical support for its annual Cyber Quest prototyping experimentation event, which requires a year of planning and testing and culminates in a month–long event attended by key stakeholders, industry, and academia.
The Army posted its J&A to FedBizOps on September 3. Summit protested shortly thereafter, arguing that the Army cannot demonstrate unusual and compelling urgency that would result in serious injury to the agency to justify the award of a sole-source contract. It also contended that the agency failed to reasonably consider the conduct of a limited competition for the sole-source requirements in violation of the Federal Acquisition Regulation (FAR). Applying its standard approach, the GAO reviewed the Army’s decision to limit competition for reasonableness.
The GAO’s discussion of the issues opens by noting that the CBL requested contract coverage to “ensure there is no break in CBL’s ability to conduct critical mission requirements…,” including supporting Cyber Quest 2020 and similar events, as well as network operations support and information security controls across the 23 DoD sites. Significantly, the Cyber Quest 2020 event was scheduled to begin within one week of the start of performance of the sole-source award and prior to the agency’s posting of the J&A. Thus, the GAO found that Summit’s claims that there were no urgent circumstances and the agency should have conducted a limited competition rather than issue a sole-source contract were clearly contradicted by the record. According to the GAO, even limited competition was not a viable option because of the short time frames involved. Further, the agency’s decision to limit competition was reasonable where the record shows the agency needed services to begin by at least August 18.
In response, Summit argued that “Cyber Quest 2020 was not that important of an Exercise,” and that the balance of the services provided under the sole-source contract are not necessary for operational readiness. That argument did not succeed, largely because a protester’s disagreement with the agency’s judgments regarding its needs and how best to accommodate them, without more, is insufficient to show that the agency’s judgment is unreasonable. In other words, despite what looked like a good set of facts at the outset, Summit ran into a buzz saw consisting of cogent agency explanations, backed up by facts, and the deference routinely give to contracting officers. The nature of the Army’s requirements surely also came into play. The fact that the action was being taken to support the DoD’s immediate needs in the cybersecurity arena certainly made it even harder for Summit to prevail over the contracting officer’s determination of compelling urgency.
In the end, the GAO found that the agency demonstrated a reasonable basis for awarding a short term sole-source contract to Ad Hoc to avoid a break in services after Summit filed its initial protest on August 10, and also found reasonable the agency’s conclusion that it could not conduct a limited competition in time to satisfy its immediate requirements.
This does not mean that all challenges to agency determinations of unusual and compelling urgency are automatically doomed. But unhappy offerors confronting such findings and the corresponding sole-source awards must carefully consider all available facts and circumstances before deciding whether and how to mount such an attack. Such protests can be much harder than they look.
Contact Eric Whytsell for more information.