Protest alleging that solicitation was de facto sole-source procurement is denied. The solicitation sought equipment that could test radios with frequencies up to 6 GHz. The protester alleged that only one company could provide equipment up to 6 GHz so the agency the solicitation was effectively a sole-source procurement. GAO, however, found that the agency had conducted significant market research and determined that at least two companies could provide 6 GHz equipment. The solicitation was not a de facto sole-source procurement, and the agency had no obligation to wait until other offerors developed 6 GHz capabilities.
The Marine Corps issued a request for information to determine whether any contractor was capable of providing test equipment capable of testing radio with frequencies up to 2.6 GHz. Several companies responded, and the Marines held an industry day. Following the industry day, the Marines issued another RFI seeking test equipment capable of testing up to 6 GHz. Seven companies responded to the second RFI. Several months later, the Marines issued a solicitation seeking test sets capable of testing radio signals up to 6 GHz.
Tel-Instrument Electronics Corporation (TIC) asked the Marines for a three month extension for the proposal deadline. The Marines granted the request. TIC asked for a second extension, which was denied. Thereafter, TIC filed a protest challenging the terms of the solicitation. TIC claimed that 6 GHz tests were only available from one firm. Thus, the agency did not have a reasonable expectation of receiving more than one offer in response. As a result, the solicitation was a de facto sole-source procurement.
GAO noted that an agency should, in some cases, delay or restrict procurements when only one offeror can supply the agency’s needs. The agency may procure its immediate needs from one offeror, but it should delay procurement of its future needs while other companies develop the capability to meet the agency’s requirements.
The facts in this case, however, did not present such a situation. Before issuing the solicitation, the Marines had conducted significant market research and received response from several offerors. The agency conduced meetings with four offerors and received assurances that at least two could provide 6 GHz test equipment. The Marines therefore had a reasonable expectation that more than one offeror could meet its needs. Indeed, GAO noted, the Marines had given TIC an extension to give it a chance to develop a 6 GHz test kit. There was no basis to conclude the solicitation was a de facto sole source acquisition.
TIC also alleged that the Marines violated FAR 15.201. That provision states that when information about a proposed acquisition is disclosed to one offeror, the information should be made available to the public as soon as possible. TIC argued that the agency violated FAR 15.201 by holding pre-solicitation conferences, which TIC did not attend, but then failed to provide information from those conference to TIC.
GAO found no violation. The industry day conference with offerors were an early stage of market research that took place prior to the Marines’ preparation of final specifications. The agency’s requirements were not sufficiently definite so that the industry day disclosure constituted information necessary for the preparation of proposals.
Even assuming the information disclosed at industry day was the type of information that was necessary for the preparation of proposals, it was not clear that the Marines had violated the FAR. Section 15.201 requires that information necessary for proposals be disclosed no later than the next general release of information. Here, the next general release of information was the publication of the solicitation. Because there were no general releases of information between the industry day and the issuance of the solicitation, the Marines had met is obligations under the FAR.
TIC is represented by Lars E. Anderson, Charlotte R. Rosen, and James P. Miller of Odin Feldman & Pittleman, PC. The agency is represented by Lisa L. Baker, Blane B. Lewis, and Ellen Clark of the Marines. GAO attorneys Michael Williams and Edward Goldstein participated in the preparation of the decision.
