Protest objecting to an agency’s decision to purchase items under DoD’s Experimental Purchasing Authority is denied. The agency had previously conducted market research and prototype testing for an aircraft project using DoD’s prototype Other Transactions Authority. The agency, however, decided to conduct a subsequent phase of the project under a different statute that authorized Experimental Purchases. The protester argued that an agency was not allowed to start a project under the prototype Other Transactions Authority statute and then switch to the Experimental Purchasing Authority statute. But GAO found that nothing in the text of either the prototype or the experimental statutes prevented an agency from using a different statute for different parts of the project.
The protest arose out of the Air Force’s light attack aircraft program. In the first two phases of the program, the Air Force used its prototype other transactions authority under 10 U.S.C. § 2371b to develop light attack aircraft prototypes and to carry out market research. In phase I of the program, the Air Force issued an invitation to bidders to participate in market research. In Phase II, the Air Force selected to vendors’ aircraft for testing.
For phase III, the Air Force announced that it would not pursue a competitive procurement but would still continue to experiment. The Air Force issued a determination and findings document, explaining that it planned to purchase aircraft from Textron Aviation Defense, LLC under 10 U.S.C. § 2373, Procurement for Experimental Purposes. Thereafter, the Air Force issued an RFP to Textron to initiate purchase of the aircraft for the experimentation. Air Tractor, Inc. filed a protest, arguing that the agency’s decision to use Experimental Purchasing authority under 10 U.S.C. § 2373 was improper.
GAO first considered whether it had jurisdiction to consider an agency’s use of Experimental Purchase authority. GAO noted that under the Competition in Contracting Act, it has authority to consider protests concerning the award or proposed award of a contract. Section 2373 states that DoD may exercise its experimental authority “via contract or otherwise.” Here, the Air Force used a contract to obtain the aircraft, so GAO determined it had jurisdiction. Nevertheless, if the agency had used its experimental purchasing authority to acquire items through a non-contractual instrument, GAO reasoned that it may not have had jurisdiction over the protest.
As to the protest grounds, Air Tractor contended that it was improper for the Air Force to use its Experimental Purchasing Authority after previously using prototype Other Transactions Authority. The Air Force had conducted the first phases of the project under its prototype authority set forth in 10 U.S.C. § 2371b. For phase III it had switched over to Experimental Purchasing Authority under 10 U.S.C. § 2373. Air Tractor argued § 2371b set forth a procedure for follow-on production contracts for prototypes developed under prototype authority. Having already completed the first two phased under § 2371b’s prototype authority, Air Tractor alleged, the Air Force should continue with that section’s follow-on procedures for a production contract. Allowing an agency to switch over to the experimental purchase statute in the middle of a project, Air Tractor contended, would nullify the §2371b’s follow-on provisions.
GAO noted that this argument was untimely because it was raised for the first time in Air Tractor’s comments on the agency report. Regardless, GAO also did not believe the argument had merit. Nothing in the language of §2371b limits an agency from using another statute to purchase an item if the purchase is consistent with that separate statutory authority. Additionally, nothing in the language of § 2373 limits an agency’s use of that statute based on its previous use of §2371b for a prior phase of the project. What’s more nothing in §2371b prohibits an agency from entering into contract of other purposes, like experimentation.
Air Tractor also contended that the record did not support the Air Force’s contention that it needed the Textron aircraft for experimentation. Air Tractor argued that the specific aircraft the Air Force planned to procure from Textron were not experimental, and it did not appear form the solicitation that they would be used for experimentation.
GAO rejected this argument, noting that while the solicitation did not contain a detailed exposition of the experimentation to be conducted, this did not mean that the aircraft would not be used for experimentation. It was the Air Force, not Textron, that would be conducted the experiments, so there was no need to explain the experimentation in detail in the solicitation. What’s more, the determinations and findings document the Air Force issued before the solicitation actually detailed the type of experimentation the Air Force would focus on.
Air Tractor argued that the determinations and findings document was inadequate because it lacked any reference to competition and failed to show that Textron’s aircraft—as opposed to Air Tractor’s aircraft—were necessary for the proposed experimentation. But GAO found that nothing in the §2373 requires an agency to use or consider competitive acquisition methods or to show that the item being require is necessary.
Air Tractor is represented by Jonathan D. Shaffer, Mary Pat Buckenmeyer, and Todd M. Garland of Smith Pachter McWhorter PLC. The intervenor, Textron, is represented by James J. McCullough, Michael J. Anstett, and Katherine L. St. Romain of Fried, Frank, Harris, Shriver & Jacobson LLP. The agency is represented by Heather M. Mandelkehr, Thomas M. Powers, and John F. Spurlin of the Air Force. GAO attorneys Alexander O. Levine and Jennifer D. Westfall-McGrail participated in the preparation of the decision
