Protest challenging agency’s decision to meet its requirements through the award of a sole-source contract is denied, where the awardee held an exclusive land use agreement with the government of Iraq and therefore was the only responsible source for the services. Regardless of the exclusivity of the awardee’s arrangement, GAO also noted the protester provided no evidence it could obtain a land use agreement with the Iraqi government, and therefore would not have been a responsible source for the services, even if the agency had held a full and open competition.
Sallyport Global Holdings protested the Army’s award of a sole-source contract for base life support services at Camp Taji, Iraq, to SOS International LLC, arguing that the agency’s sole-source rationale is unreasonable and that the award should be made under full and open competition.
The agency based its decision on its understanding that SOS had an exclusive land use agreement with the government of Iraq, and therefore was the only responsible source for the services.
In its protest, Sallyport argued that it could obtain a land use agreement with the Iraqi government that would enable it to perform the requirement, and therefore the agency’s assumption that there was only one responsible source was erroneous.
The Army explained that while coalition forces controlled and operated Camp Taji green zone after the invasion of Iraq, the Iraqi government had regained sovereign control over this area in connection with the draw down of military forces. At that point, the Iraqi government contracted with western firms to continue to provide BLS services at the Camp Taji green zone, and in that connection, executed an exclusive LUA with SOS to ensure continuity of those services. The Army explained that the current agreement between SOS and the Iraqi government was reaffirmed on March 14, 2018, and is effective for three years. The agreement also prevents other firms from using the facilities and infrastructure at the Camp Taji green zone.
Given the agency’s evidence of the exclusivity arrangement between SOS and the Iraqi government, GAO found it reasonable for the Army to determine that SOS would be the only responsible source for the required services.
Sallyport challenged certain agency documents supporting the Army’s original justification and approval as “post hoc” explanations for the sole-source determination, but GAO found this argument misdirected. The agency provided letters from the U.S. Embassy in Iraq documenting the exclusivity agreement between Iraq and SOS, which Sallyport argued should be disregarded, as they were submitted during the heat of litigation.
But GAO explained that, rather than establishing a new rationale for the sole source J&A, the letters supported the veracity of the underlying assumptions of the J&A, that SOS had an exclusive land use agreement that precluded the Army from holding a competition for the services. In addition, the letter was prepared by Department of State officials that are not a party to the litigation; it follows that the letter was not “prepared in the heat of litigation” as GAO uses the concept in its cases.
Finally, GAO noted that Sallyport produced no evidence that it could secure its own land use agreement with the Iraqi government. To the extent Sallyport challenged the procedures the agency used to create the J&A, GAO found the protester was not prejudiced, because absent a land use agreement with the Iraqi government, Sallyport was not a responsible source for the services.
Sallyport Global Holdings is represented by Kara L. Daniels and Sonia Tabriz of Arnold & Porter Kaye Scholer, LLP. SOS International LLC is represented by Bradley D. Wine, Sandeep N. Nandivada, and Caitlin A. Crujido of Morrison & Foerster LLP. The government is represented by Wade L. Brown, Department of the Army. GAO attorneys Scott H. Riback and Tania Calhoun participated in the preparation of the decision.
