EADS North America, Inc., B-291805, March 26, 2003

B-291805 Mar 26, 2003 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights EADS asserts that the Air Force is required by recent statutory changes to terminate its order for two C-40 aircraft already ordered under the contract and to compete that requirement. " on the basis that "[t]he Boeing Company is the manufacturer of the C-40B and C-40C special mission aircraft and the only contractor that has demonstrated the expertise and working knowledge necessary to provide these aircraft.". The synopsis stated that "any capable and qualified offeror that has the ability and capacity to supply C-40 aircraft and meet the required delivery schedule is invited to respond to this notice documenting these qualifications not later than 1 Apr[il] [20]02.". The J&A justified use of noncompetitive procedures on the basis that Boeing was the only source capable of furnishing the aircraft and services. View Decision EADS North America, Inc., B-291805, March 26, 2003 DIGEST Attorneys DECISION EADS North America, Inc., on behalf of itself and its affiliate Airbus North America, Inc., protests the Department of the Air Force's actions under contract No. F3365702-C-0017, for C-40 series special mission aircraft. EADS asserts that the Air Force is required by recent statutory changes to terminate its order for two C-40 aircraft already ordered under the contract and to compete that requirement, and also to compete any future orders for C-40 aircraft that obligate Fiscal Year 2003 funds. We dismiss the protest because EADS lacks the requisite interest to challenge the agency's actions. Section 8159 of the Department of Defense (DOD) Appropriations Act for Fiscal Year 2002 provided as follows: The Secretary of the Air Force may, from funds provided in this Act or any future appropriations Act, establish and make payments on a multi-year pilot program for leasing general purpose Boeing 767 aircraft and Boeing 737 aircraft in commercial configuration. Defense Appropriations Act for Fiscal Year 2002, Pub. L. No. 107-117, Sec. 8159(a), 115 Stat. 2230, 2284 (2002). On March 15, 2002, the Air Force synopsized its intent to award under section 8159 a sole-source contract to the Boeing Company for the lease of, and maintenance support for, "four commercial Boeing 737 special mission aircraft (C-40B/C)," on the basis that "[t]he Boeing Company is the manufacturer of the C-40B and C-40C special mission aircraft and the only contractor that has demonstrated the expertise and working knowledge necessary to provide these aircraft." Federal Business Opportunities (FedBizOpps), Mar. 15, 2002. The synopsis stated that "any capable and qualified offeror that has the ability and capacity to supply C-40 aircraft and meet the required delivery schedule is invited to respond to this notice documenting these qualifications not later than 1 Apr[il] [20]02." Id. EADS previously had responded to a request for information concerning the agency's requirement for Boeing 767 tanker aircraft, generally advising that the "Airbus A320 transport aircraft family configurations compete directly with the Boeing 737 family." EADS Response to Feb. 20, 2002 Request For Information, Mar. 6, 2002, Sec. 1.3.5. However, EADS did not respond to the March 15 synopsis by documenting its qualifications. Air Force Motion to Dismiss, Jan. 10, 2003, at 2; EADS Comments, Jan. 22, 2003, at 4. Subsequently, according to EADS, during a telephone conversation on or about May 15, and again during a June 12 meeting, the Air Force advised EADS that it would not consider EADS for award of a lease of C-40 aircraft. Protest at 2. On June 5, the Assistant Secretary of the Air Force for Acquisition executed a justification and approval (J&A) for award of a contract to Boeing on a sole-source basis for up to four Boeing 737 (C-40) aircraft; the J&A justified use of noncompetitive procedures on the basis that Boeing was the only source capable of furnishing the aircraft and services. On September 17, the agency awarded a contract to Boeing, for the lease of two C-40 aircraft, with options for two additional aircraft. On October 23, the DOD Appropriations Act for Fiscal Year 2003 was enacted. Section 8147 of that Act provides that: "None of the funds appropriated by this Act may be used for leasing of transport/VIP aircraft under any contract entered into under any procurement procedures other than pursuant to the Competition [in] Contracting Act." Pub. L. No. 107-248, Sec. 8147, 116 Stat. 1519, 1572 (2002). Following enactment of this provision, EADS requested that the Air Force provide EADS with an opportunity to compete for the C-40 aircraft requirement, on the basis that the lease contract had not been awarded after full and open competition, as it alleged was required by section 8147. The Air Force (by letter of December 11) responded that it had met the relevant statutory requirements and therefore would not conduct a competition.