Hawker Eternacell, Inc., B-283586, November 23, 1999

B-283586 Nov 23, 1999 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights Which is outside the scope of the General Accounting Office's bid protest jurisdiction. 2. Where the protester currently held a contract for the same batteries and the agency reasonably found that another source was necessary to ensure the batteries' continuous availability. Of which the BA-X590A/U is a part. Is the main power source for most of the Army's portable. Of which the BA-X590A/U is an updated version. Is extensively used and has one of the highest monthly demands of any of the military-unique batteries managed by the Army. The agency states that this battery configuration is used in over 50 items. The BA-5590 battery configuration and the other members of this battery family have been identified as critical items. View Decision Matter of: Hawker Eternacell, Inc. File: B-283586 Date: November 23, 1999 DIGEST Attorneys DECISION Hawker Eternacell, Inc. protests the terms of request for proposals (RFP) No. DAAB07-99-R-A273, issued by the U.S. Army Communications-Electronics Command for a quantity of BA-X590A/U non-rechargeable, high performance lithium batteries. Hawker, which currently has a contract to supply the Army with these batteries, challenges its exclusion from the competition for award. We deny the protest. The high performance lithium battery family, of which the BA-X590A/U is a part, is the main power source for most of the Army's portable, combat communications and electronic equipment. The BA-5590 battery configuration, of which the BA-X590A/U is an updated version, is extensively used and has one of the highest monthly demands of any of the military-unique batteries managed by the Army. The agency states that this battery configuration is used in over 50 items, ranging from radio equipment to artillery fire control and surveillance systems. Accordingly, the BA-5590 battery configuration and the other members of this battery family have been identified as critical items. Agency Report, Tab A, Contracting Officer's Statement, at 1-2. In September 1996, after a competition that contemplated multiple awards, the Army awarded Hawker the sole contract to supply the BA-5590A/U battery (which the protester and agency agree is the equivalent of the battery sought by the RFP) for a 5-year contract period. Protest at 2; Contracting Officer's Statement at 2. The agency states that the specifications of that contract require Hawker to provide the BA-5590A/U with a state of charge indicator (SOCI), which is also a requirement of the BA-X590A/U. /1/ Contracting Officer's Statement at 2-3. The agency also states that it has not yet received from Hawker any of the BA-5590A/U batteries with the SOCI feature because of Hawker's difficulty in passing first article testing for this battery with this feature. Instead, the Army has allowed Hawker to provide the battery without the SOCI feature. Id. at 3. The Army determined that it would seek a second source for the BA-X590A/U battery. Specifically, the agency found that although the use of rechargeable batteries has increased in recent years, it has not resulted in a corresponding decrease, as expected, in non-rechargeable batteries, such as BA-X590A/U. The Army found as follows: As a result of [the] problems faced by Hawker, peacetime inventory levels have dropped dangerously low. Hawker lacks the technical and production resources to deliver sufficient quantities of batteries in a timely manner to allow for rebuilding of assets to acceptable levels. Even if Hawker was able to produce at full capacity, there is no remaining capacity for rebuilding war reserve battery inventories to the required levels or for the potential surging of production if a deployment should occur. Agency Report, Tab 3, Determination and Findings (D&F), Authority to Exclude Sources for Supplies Being Acquired, June 11, 1999, at 2. In addition, the agency concluded that obtaining a second source for the battery would increase future competition that would benefit the agency. Id., Justification for D&F, at 2. Hawker was informed that it would not be allowed to compete for award under the RFP and of the reasons for its exclusion. Contracting Officer's Statement at 5, Agency Report, Tab 11, Letter from Contracting Officer to Hawker 1-2 (July 12, 1999). This protest followed. Hawker essentially complains that the Army has no reasonable basis to exclude it from competition for award under the RFP or in fact to issue the RFP at all. /2/ In this regard, Hawker argues that award of a contract under the RFP would violate the terms of its current contract, which Hawker asserts is a requirements contract. Protest at 7-8, Comments at 1. The Army disagrees that Hawker's current contract is a requirements contract and that an award to another firm under the RFP would constitute a breach of Hawker's contract.