Wamore Inc.

B-417450,B-417450.2 Jul 09, 2019 Jump To FULL REPORT VIEW DECISION RELATED PAGES GAO CONTACTS Highlights Wamore, Inc., of Phoenix, Arizona, protests the intended sole-source award of a contract to Airborne Systems North America (Airborne Systems), of Pennsauken, New Jersey, under request for proposals (RFP) No. W56HZV-18-R-0077, issued by the Department of the Army, Army Contracting Command – Warren, for the supply of joint precision aerial delivery systems (JPADS) for foreign military sales (FMS) to the countries of Norway and Jordan. Wamore argues the intended sole-source contract award to Airborne Systems is improper, insofar as the Army's belief that only Airborne Systems possesses the necessary data rights for the procurement here is in error. We deny the protest. View Decision DOCUMENT FOR PUBLIC RELEASE The decision issued on the date below was subject to a GAO Protective Order. This redacted version has been approved for public release. Decision Matter of: Wamore, Inc. File: B-417450; B-417450.2 Date: July 9, 2019 Dennis C. Ehlers, Esq., David A. Edelstein, Esq., and Caitlin E. Trevillyian, Esq., Asmar Schor & McKenna PLLC, for the protester. Jonathan D. Shaffer, Esq., Armani R. Vadiee, Esq., Mary Pat Buckenmeyer, Esq., and Todd M. Garland, Esq., Smith Pachter McWhorter PLC, for Airborne Systems North America, the intervenor. Jonathan A. Hardage, Esq., and Misty L. Caldwell-Colen, Esq., Department of the Army, for the agency. Louis A. Chiarella, Esq., and Peter H. Tran, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest of proposed award of a sole-source contract for highly specialized equipment for foreign military sales purposes is denied where the record shows the agency reasonably concluded that only one firm possessed the necessary data rights to produce the item and was capable of meeting the agency's needs, and award to any other source would cause unacceptable delay in fulfilling the agency's requirements. DECISION Wamore, Inc., of Phoenix, Arizona, protests the intended sole-source award of a contract to Airborne Systems North America (Airborne Systems), of Pennsauken, New Jersey, under request for proposals (RFP) No. W56HZV-18-R-0077, issued by the Department of the Army, Army Contracting Command - Warren, for the supply of joint precision aerial delivery systems (JPADS) for foreign military sales (FMS) to the countries of Norway and Jordan. Wamore argues the intended sole-source contract award to Airborne Systems is improper, insofar as the Army's belief that only Airborne Systems possesses the necessary data rights for the procurement here is in error. We deny the protest. BACKGROUND The JPADS is a guided, high-altitude capable, precision airdrop system used to accurately deliver payloads by aircraft to soldiers on the ground. Contracting Officer's Statement/Memorandum of Law (COS/MOL) at 4; Agency Report (AR), Tab 41, Justification and Approval (J&A) at 3. The JPADS essentially uses a global positioning system (GPS), steerable parachutes, and an onboard computer to guide loads of varying weights (e.g., 2,000 pounds, or "2K") to a designated landing point. The JPADS is comprised of two primary subsystems: (1) a decelerator (i.e., parachute with steering lines); and (2) autonomous guidance unit (AGU) consisting of GPS, battery pack, "guidance, navigation and control" software, and hardware required to operate the steering lines.1 COS/MOL at 4; AR, Tab 41, J&A at 3. The AGU creates drag on either side of the decelerator, which thereby provides JPADS with system directional control throughout its descent. The JPADS 2K procurement history is a long and contentious one. On March 12, 2007, the Army competitively awarded contract No. W911QY-07-D-0010 (hereinafter, D-0010 contract) to Airborne Systems for the design, development, manufacture, and testing of the JPADS 2K system.2 COS/MOL at 4; AR, Tab 14, D-0010 Contract. Wamore was a subcontractor to Airborne Systems under this original development contract. Wamore Comments at 12. On April 16, 2009, as part of the administration of the D-0010 contract, the Army offered to purchase data rights in the JPADS 2K system from Airborne Systems. AR, Tab 16, Army Letter to Airborne Systems. On June 4, prior to the sale of data rights to the Army, Airborne Systems entered into a "rights purchase agreement" with Wamore. Relevant to this discussion, the agreement provided for the following: Wamore hereby sells, delivers, transfers, assigns and conveys exclusively to Airborne . . . all of Wamore's worldwide rights, title and interest in and to the Components [i.e., Airborne Guidance Unit WA-2000], including, but not limited to: (i) any and all U.S.