Protest challenging the terms of a solicitation is denied, where the requirement was mature and well-defined, and therefore the agency could reasonably expect to award the contract to a capable vendor using an LPTA approach, and where the requirement that offerors identify a pool of potential hires for certain positions was not unduly restrictive of competition, given the difficulty of filling these positions and their importance to the mission. GAO also denied the protester’s challenge to the award of a sole-source bridge contract, finding the agency reasonably evaluated whether it could conduct a procurement and transition to a new contractor with the time available, and concluded it could not.
Trailboss Enterprises Inc. challenged the terms of an Air Force request for proposals for training services, as well as the award of a sole-source bridge contract to PKL Services Inc., following the expiration of the incumbent contract and prior to the award of the new requirement.
In challenging the terms of the solicitation, Trailboss first argued that the solicitation improperly provides for award on an LPTA basis, in violation of DoD policy and provisions on the FY 2017 National Defense Authorization Act.
In response, the agency argued that the use of an LPTA approach is appropriate because the RFP is for the third iteration of the agency’s requirements for training services in support of Singapore’s Air Force. For this third solicitation, the agency stated that it has been able to develop well defined tasks and workload estimates, which have been included in the PWS’s minimum requirements, and that the requirements are recurrent, mature, and well-defined. The agency also concluded that performance risk is low.
Trailboss disagreed, citing DoD policy and language in the FY2017 NDAA limiting DoD’s use of the LPTA approach. However, GAO found that the memorandum cited by Trailboss does not establish mandatory regulations for the use of LPTA award criteria, and as such, is not for GAO’s review. Further, GAO found the NDAA did not expressly prohibit the use of LPTA award criteria, but directed DoD to promulgate DFARS regulations that incorporate NDAA guidance. However, DoD had not yet promulgated such rules, and therefore GAO would not agree that the solicitation violated that provision of the NDAA.
Next, Trailboss argued that the solicitation’s proposal requirements are unduly restrictive of competition. Specifically, the protester argued that the requirements to provide information regarding proposed personnel and to demonstrate the offeror’s experience are unreasonable.
The recruitment/retention subfactor of the technical evaluation factor required offerors to provide a comprehensive written plan to recruit and retain qualified personnel for all positions described in the PWS. As part of the written plan, offerors were required to provide a number of qualified contacts with individuals who could meet the PWS requirements in four labor categories. Trailboss argued that the requirement to submit qualified contacts is unduly restrictive of competition because the RFP specified the contacts must be qualified to perform the requirements at the time of proposal submission. The protester argued that the agency should allow offerors to identify contacts who could become qualified prior to beginning the work. Alternatively, the protester argued that the agency should allow offerors to propose to retain incumbent personnel, without identifying specific individuals.
In response, the agency argued the requirements are reasonable because they are intended to demonstrate an offeror’s ability to provide personnel for the four positions, which are either difficult to fill or are so critical to the mission that an interruption in service would result in mission degradation. GAO found this reasonable. GAO agreed with the agency that the requirements are more restrictive than allowing offerors to identify prospective personnel after award, but less restrictive than requiring letters of commitment.
Similarly, Trailboss complained that the RFP required offerors to provide contacts with three training instructor/managers, while the PWS requires only one individual for this position. The agency explained that the incumbent contract does not have an individual in this position, and that it will be filled for the first time on the new contract. Because the position will need to be filled immediately, the agency wanted offerors to demonstrate their contacts with a sufficient hiring pool. GAO also found this reasonable.
Finally, Trailboss argued that the experience subfactor of the technical evaluation factor is unduly restrictive of competition because it requires offerors to demonstrate involvement as a party to at least one contract with the federal government at any time in the last five years in which maintenance support and operations support for 4th-generation fighter aircraft were critical objectives. Trailboss complained that this requirement effectively means that any company submitting a proposal must have performed identical work in the past. However, Trailboss noted that such contracts do not exist, and therefore the solicitation is limited only to the incumbent contractor.
In response, the Air Force noted that while the RFAF preferred that the competition be limited to offerors with F-15 experience, the agency broadened the requirement in the RFP to any 4th-generation aircraft. The agency further stated that other contracts meet the solicitation’s experience requirements, including contracts with partners from Saudi Arabia, Oman, and other countries. GAO found this reasonable and found no basis to conclude the RFP was unduly restrictive.
Next, Trailboss argued that the solicitation is tainted by a biased ground rules OCI. The protester complained that the terms of the solicitation favor PKL, the incumbent contractor, which in turn demonstrates that the firm must have been involved in the development of the solicitation. In response, the Air Force stated unequivocally that PKL had no role in drafting the solicitation. The Air Force also investigated an earlier complaint by Trailboss involving an incident that occurred prior to the issuance of the solicitation, and identified no OCI. GAO concluded that Trailboss’ complaint, unsupported by hard facts or evidence, did not provide a basis for sustaining the protest.
Trailboss also challenged the award of a sole-source bridge contract to PKL, arguing that the justification and approval was not reasonable, and that the award resulted from a lack of advanced planning.
The Air Force’s J&A stated that the agency required continued services for the program following the expiration of the incumbent contract. The J&A also stated that the agency had contacted three potential offerors other than the incumbent, including Trailboss, to inquire as to whether they would be able to meet the requirement for a sole-source bridge contract. Based on the responses, the agency concluded that transition could take 30-45 days, with an additional 14 days for employee clearance and badging requirements, and that there would be additional cost associated with changing out contractors. Based on the transition requirements, additional costs, and the time needed to conduct a competitive procurement, the agency concluded that only PKL was capable of meeting the agency’s requirements for continued services.
Trailboss argued the agency has known of its requirements since 2008, the date of the award of the first of two sole-source contracts for these requirements, and therefore any short-term need arising from the expiration of the incumbent contract must reflect a lack of advance planning. GAO disagreed, finding that the agency expected to award the competitive follow-on contract prior to the expiration of the incumbent contract, but was delayed by an earlier protest by Trailboss and its corrective action.
Next, Trailboss argues that the sole-source award was improper because the Air Force failed to solicit offers from firms other than the incumbent contractor. In response, the Air Force explained that the nature of the requirement and short time until the expiration of the incumbent contract made it impracticable to solicit more than the awardee. Further, the agency did contact the protester and other firms to assess whether it would be possible to conduct a competitive procurement and transition to a new contractor for the bridge period. Under the circumstances, GAO found the agency took reasonable steps to identify opportunities for competition and justified its decision to award a sole-source contract.
Trailboss Enterprises Inc. is represented by Charles R. Lucy of Holland & Hart LLP. The government is represented by Colonel C. Taylor Smith, Isabelle Cutting, and Justin D. Haselden, Department of the Air Force. GAO attorneys Jonathan L. Kang and Laura Eyester participated in the preparation of the decision.
