Competition

Army Lawyer, Jan, 2007 by Ralph J. Tremaglio, III

While the Transportation Security Administration Falls under the Department of Homeland Security, and the GAO Has Jurisdiction over DHS Procurements, the GAO Does Not Have Jurisdiction over TSA Procurements Because of the Administration Acquisition Management System

In Knowledge Connections, Inc., (1) the Government Accountability Office (GAO) confirmed that while the Transportation Security Administration (TSA) falls within the Department of Transportation (DOT), the GAO does not have jurisdiction over TSA procurements. (2) Knowledge Connections protested a TSA solicitation for reservation center support services. (3) The Aviation and Transportation Security Act (ATSA) (4) established the TSA as an agency under the Department of Transportation. (5) The Homeland Security Act of 2002 (6) transferred the TSA to Department of Homeland Security (DHS), but did not effect the specific exemption of the Federal Aviation Administrations Acquisition Management System (AMS) from GAO bid protest jurisdiction. (7)

The GAO had previously determined that TSA solicitations and contracts for services did remain part of their jurisdiction because the ATSA limited the bid protest exemption to procurements for equipment, supplies and services. (8) In 2005, Congress specifically stated that "[f]or fiscal year 2006 and thereafter, the acquisition management system of the [TSA] shall apply to the acquisitions of services, equipment, supplies, and materials. (9) Therefore, the GAO dismissed the protest. (10)

Is It Reasonable to Expect the Contracting Officer to Read Information Provided for a Pending Procurement?

Europe Displays, Inc., successfully protested a Federal Transit Administration's (FTA) sole source procurement to Connexion for the design, construction, maintenance, and dismantling of a pavilion at the Mobility and City Transport Exhibition held in Rome, Italy, on the grounds that the contracting officer's negligence can erode the grounds for a sole source procurement. (11) The FTA first misinterpreted the exhibition requirements, and then attempted to justify the sole source selection under a misguided theory. (12)

The FTA published an announcement on FedBizOpps that it intended to negotiate with Connexion on a sole source basis for the design and construction of a U.S. pavilion at the biannual exhibition. (13) Believing that the exhibition required the use of a particular contractor, the FTA based its sole source selection on the "only one responsible source" exception to competition. (14) The notice went on to state that interested potential sources could submit a written response to the agency "no later than 15 days" after publication. (15)

Europe Displays, Inc. submitted a proposal on day fourteen, within the time limit placed on FedBizOpps. Relying on the government's misinterpretation of the exhibition requirements, the contracting officer stated the agency would not "give the firm an opportunity to compete." (16) Initially the agency was under the mistaken impression that the exhibition organizer required the participants to use Connexion to build and maintain the exhibitions. (17) The agency believed this in spite of the fact that the exhibitor's handbook specifically addressed custom-designed stands and the thirty days required for custom project approvals. (18) By the time the agency realized its mistake, the exhibition was less than thirty days away and the organizers denied FTA's request for a waiver of the thirty-day deadline. (19) The FTA then issued a justification and approval (J&A) for a sole source award to Connexion based upon the exception allowing award of a follow-on contract for the continued development of a major system or highly specialized equipment when it is likely that an award to a source other than the incumbent would result in unacceptable delays in fulfilling the requirement. (20)

Europe Displays, Inc. filed an agency level protest which the agency denied. (21) In the interim, the agency determined that it was in its best interest to continue performance with the contract as awarded. (22) Europe Displays, Inc. then filed a protest with the GAO alleging that the J&A did not support award to Connexion and that the agency had no reasonable basis to determine that the awardee was the only firm permitted to design and construct the exhibits. (23) Unfortunately for Europe Displays, Inc., by the time the protest was heard, the protested procurement had been fully performed. (24)

In response to the protest, the agency acknowledged that the authority cited in the J&A did not apply to this procurement, and that Europe Displays, Inc. was qualified and capable of performing the contract. (25) Instead, the agency claimed that the acquisition was conducted under the simplified acquisition procedures and, therefore, FAR part 13 applied. (26) While the GAO agreed, it reminded the agency that even under the simplified acquisition procedures, it was still required to obtain competition "to the maximum extent practicable." (27) While an agency may solicit from a sole source, the contracting officer has to determine that only one source is reasonably available. (28) In this case the agency did not clearly identify the basis of its belief that the exhibition organizer required participants to use Connexion. (29) In fact, the belief was not reasonable given that the information in the handbook specifically addressed custom designs there was no basis for a sole source award. (30) The GAO sustained the protest, but since the contract was fully performed, awarded Europe Displays, Inc. its costs and attorneys fees. (31)