Hawaii Energy Systems, LLC ()

B-419789 May 24, 2021 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Hawaii Energy Systems, LLC (HES), of Aiea, Hawaii, protests the issuance of justifications and approvals (J&As) for the use of other than full and open competition in connection with solicitations for requirements in Hawaii and Guam, by the Department of the Navy, Naval Facilities Engineering Command. The protester argues that the agency improperly used the J&As to award contracts to firms at higher prices than what the protester contends it offered or would have offered. We dismiss the protest. View Decision Decision Matter of:  Hawaii Energy Systems, LLC File:  B-419789 Date:  May 24, 2021 Rolf A. Klein, for the protester. Mark Morita, Esq., and Philip Tourangeau, Esq., Departnment of the Navy, for the agency. Jonathan L. Kang, Esq., and John Sorrenti, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest challenging the issuance of justifications and approvals (J&As) for the use of other than full and open competition is dismissed as untimely where the protest was filed after the closing dates for the associated solicitations, and because it fails to state adequate legal and factual arguments concerning the J&As.    DECISION   Hawaii Energy Systems, LLC (HES), of Aiea, Hawaii, protests the issuance of justifications and approvals (J&As) for the use of other than full and open competition in connection with solicitations for requirements in Hawaii and Guam, by the Department of the Navy, Naval Facilities Engineering Command.  The protester argues that the agency improperly used the J&As to award contracts to firms at higher prices than what the protester contends it offered or would have offered. We dismiss the protest. BACKGROUND On April 20, 2021, HES filed this protest arguing that the Navy improperly issued J&As for the use of other than full and open competition in solicitations for the agency’s requirements in Hawaii and Guam.  Protest at 1-2.  HES’s protest consists of:  (1) an email, with the date and addressee omitted, outlining the protester’s complaints regarding the Navy’s award of two contracts to Johnson Controls Incorporated (JCI); (2) a December 1, 2020, letter to the office of U.S. Senator Brian Schatz concerning the Navy’s award of sole-source contracts in Hawaii and Guam; (3) a second December 1, 2020, letter to the office of U.S. Senator Brian Schatz enclosing the four J&As referenced in the first letter; (4) a March 8, 2019, letter from the Small Business Administration (SBA) to the protester’s representative, identifying him as the “2019 Hawaii State Small Business Person of the Year”; and (5) the award certificate for the 2019 SBA award.  The Navy filed a request to dismiss the protest on May 4, arguing that the protest is untimely and fails to state adequate legal and factual grounds, and that HES was not an interested party to pursue the protest.  Req. for Dismissal at 1-2.  HES responded to the agency’s request on May 6.  Response to Req. for Dismissal at 1-2.  For the reasons discussed below, we conclude that the protest is untimely and fails to state adequate legal and factual grounds.  We therefore dismiss the protest. DISCUSSION HES argues generally that the Navy improperly issued J&As for the purpose of awarding contracts without full and open competition.  See Protest, Undated Email, at 1‑2.  The protester contends that “[a]lthough [the Navy] may have the best of intentions [in] doing this, in practical reality these J&As are having an extremely negative impact on the American Taxpayer as well as ourselves, as the specified J&A Vendors seem to be taking full monetary advantage of this position. . . .”  Id. at 1. The jurisdiction of our Office is established by the bid protest provisions of the Competition in Contracting Act (CICA), 31 U.S.C. §§ 3551‑3557.  Our Office reviews alleged violations of procurement laws and regulations to ensure that the statutory requirements for full and open competition are met.  Id. § 3552(a); Cybermedia Techs., Inc., B‑405511.3, Sept. 22, 2011, 2011 CPD ¶ 180 at 2.  CICA provides that agencies must award contracts on the basis of full and open competition, absent a specific exception.  10 U.S.C. § 2304.  For example, and as relevant here, an agency may use other than full and open competitive procedures where “the property or services needed by the agency are available from only one responsible source or only from a limited number of responsible sources and no other type of property or services will satisfy the needs of the agency.”  Id. § 2304(c)(1).  When using noncompetitive procedures pursuant to an exception to the requirement for full and open competition in 10 U.S.C. § 2304, agencies are required to execute a written J&A with sufficient facts and rationales to support the use of the cited exceptions.  10 U.S.C.