SSI Technology, Inc.

B-417917 Dec 04, 2019 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights SSI Technology, Inc. (SSI), of Sterling Heights, Michigan, protests a notice of intent to award a sole-source contract to Fischer Panda Generators (Fischer Panda), of Pompano Beach, Florida, pursuant to solicitation No. W56HZV-19-R-0050, issued by the Department of the Army, U.S. Army Materiel Command, for auxiliary power units (APU). The protester challenges the agency's justification and approval (J&A) supporting the proposed sole-source contract and the agency's stated need that first article testing (FAT) is required for the procurement despite not requiring FAT for Fischer Panda. 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:  SSI Technology, Inc. File:  B-417917 Date:  December 4, 2019 Bret Wacker, Esq., Clark Hill PLC, for the protester. Frank V. Reilly, Esq., for Fischer Panda Generators, the intervenor. Matthew R. Wilson, Esq., and Joseph M. O’Connell, Esq., Department of the Army, for the agency. Young H. Cho, Esq., and Peter H. Tran, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest challenging the justification and approval in support of the agency’s notice of intent to issue a sole-source contract based on unusual and compelling urgency is denied for failure to establish competitive prejudice where, after the protest was filed, the agency provided the protester an opportunity to be considered for the procurement and reasonably determined that the protester was not capable of meeting the agency’s urgent needs. DECISION SSI Technology, Inc. (SSI), of Sterling Heights, Michigan, protests a notice of intent to award a sole-source contract to Fischer Panda Generators (Fischer Panda), of Pompano Beach, Florida, pursuant to solicitation No. W56HZV-19-R-0050, issued by the Department of the Army, U.S. Army Materiel Command, for auxiliary power units (APU).  The protester challenges the agency’s justification and approval (J&A) supporting the proposed sole-source contract and the agency’s stated need that first article testing (FAT) is required for the procurement despite not requiring FAT for Fischer Panda. We deny the protest. BACKGROUND The APUs had previously been produced by Minowitz Manufacturing Company for the Army under a contract awarded in 2015.  Agency Report (AR), Tab 3, J&A, at 1.  On August 1, 2017, after becoming aware that Minowitz was going out of business, the Defense Logistics Agency (DLA) competitively awarded an indefinite‑delivery, indefinite-quantity (IDIQ) contract with a 3-year ordering period, to Essex Electro Engineers (Essex), to produce APUs for the Army.[1]  AR, Tab 10, Essex Contract, at 1, 32.  On September 14, DLA issued a delivery order to Essex for 50 APUs that were scheduled to be delivered in July 2019.  The order also required the submission of a FAT report by August 14, 2018.  AR, Tab 11, Essex Delivery Order, at 1, 3, 4.  Essex was unable to complete FAT or to deliver any APUs, and its contract and delivery order were terminated for default on May 14, 2019.  AR, Tab 3, J&A, at 2. On April 18, 2019, the Army issued a sources sought/request for information (RFI) notice seeking vendors that have previously manufactured APUs for the federal government and have an approved FAT waiver.[2]  AR, Tab 2, Sources Sought/RFI at 2‑3.  Two vendors responded to the RFI, however, neither vendor could meet the requirement for an approved FAT waiver.  AR, Tab 3, J&A, at 3. On June 12, the Army issued a J&A for other than full and open competition pursuant to 10 U.S.C. § 2304(c)(2), as implemented in Federal Acquisition Regulation (FAR) § 6.302‑2(a)(2), to obtain APUs from Fischer Panda.  AR, Tab 3, J&A, at 1.  The J&A explained that the Army was in a critical supply position because the previous APU supplier had gone out of business and because the contract awarded to Essex had been terminated for default.  Id. at 1-2.  As a result, the agency had an urgent need for 210 APUs that were required to meet backorders and monthly demand until a new competitive contract could be awarded and FAT is approved.[3]  Id.