Datacom, Inc.--Protests and Request for Costs

Datacom, Inc.--Protests and Request for Costs BNUMBER: B-274175; B-274246.2; B-274287 DATE: November 25, 1996 TITLE: Datacom, Inc.--Protests and Request for Costs ********************************************************************** Matter of:Datacom, Inc.--Protests and Request for Costs File: B-274175; B-274246.2; B-274287 Date:November 25, 1996 Joseph A. Camardo, Jr., Esq., and Robert D. Somerset, for the protester. Sophia L. Rafatjah, Esq., for Tracor, Inc., an intervenor. Nike Nihiser, Esq., Bradley S. Adams, Esq., Gregory H. Petkoff, Esq., and Marian E. Sullivan, Esq., Department of the Air Force, for the agency. Ralph O. White, Esq., and Christine S. Melody, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST 1. Protest that two sole source awards--one via a contract, one via a modification to an existing contract--are improper and result from poor planning on the part of the agency is denied where the record shows that the agency: (1) properly justified its use of sole source authority; (2) was not responsible for the delay that occurred due to high-level political intervention in the procurement; and (3) limited the amount of the purchases to a quantity reasonably calculated to extend to the beginning of deliveries under a new contract to be awarded using full and open competition. 2. Request for recommendation that protester be permitted to recover reasonable costs associated with pursuing an earlier protest is denied where the record shows that the protest in that case was rendered academic by a change in statute, not by agency corrective action. DECISION Datacom, Inc. protests the Department of the Air Force's decision both to award a contract (F09603-96-C-52442), and to issue a contract modification (modification P00156 to F33657-88-C-0026), on a sole-source basis to Tracor, Inc. for the purchase of the AN/ALE-47 Countermeasures Dispenser System. The contract award involves quantities of spare parts related to this system for use on F-16 aircraft for the National Guard and the Air Force Reserve; the modification involves 22 AN/ALE-47 shipsets to be split between already-deployed C-17 aircraft earmarked for use in the Bosnia pullout scheduled to begin December 1996 (12 shipsets), and new C-17 aircraft where the items are needed as government-furnished equipment by January 31, 1997 (10 shipsets). Datacom argues that the stated bases for these two sole source decisions do not withstand scrutiny and constitute an improper use of sole source procedures because the Air Force engaged in poor planning. Datacom also requests that our Office recommend that it recover the reasonable costs of filing and pursuing an earlier protest related to those at issue here. We deny the protests and deny Datacom's request for its earlier protest costs. BACKGROUND The AN/ALE-47 Countermeasures Dispenser System (CMDS) is an electronic warfare system used by the Army, Navy, and Air Force to protect aircraft from hostile missile attacks.[1] The system discharges chaff cartridges and decoy flares that distract ground-launched missiles aimed at aircraft. Five distinct line replaceable units (LEU) comprise the system in varying numbers and configurations depending on the aircraft involved. The original manufacturer of this equipment, Tracor, was awarded a contract for lots I to III of this system in 1988. The record shows that the Air Force anticipated to "breaking out" the remaining need for these parts (lots IV to VII) and procuring the parts competitively. However, before the Air Force could hold a competition for the parts included in lots IV to VII, various forces intervened and derailed the procurement. A chronology of these events is set forth below. On March 17, 1994, the Air Force published in the Commerce Business Daily (CAD) a notice seeking potential new sources for production lots IV to VII of the CMDS. After receiving several expressions of interest, the Air Force, on January 30, 1995, released a draft RFP for the remaining production quantities of the system. Prior to finalization of the RFP, the procuring center's small business representative recommended that the acquisition be set aside for small business competition. After the contracting officer rejected the set-aside recommendation, and the decision was appealed to the head of the contracting activity--who also rejected the set-aside recommendation--the Secretary of the Air Force decided, on September 12, 1995, that the procurement was appropriate for a total small business set-aside. The Secretary's decision was based, in part, on a conclusion that there were at least six small businesses capable of producing this system. The Secretary's decision calling for a total small business set-aside resulted in extensive congressional interest. First, by letter dated November 21, 1995, a U.S.