Thales LAS France SAS (MS-23-057)

B-422805 Aug 30, 2024 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Thales LAS France SAS, of Limours, France, protests the conduct of a subcontract procurement by BAE Systems Technology Solutions & Services, Inc. (BAE), of Falls Church, Virginia, under solicitation No. MS-23-057, issued by BAE for radar arrays. The protester contends that BAE, acting as the United States Space Force's representative, has erred in refusing to sign an end user certificate to permit Thales to transmit its complete subcontract proposal. We dismiss the protest for lack of jurisdiction. View Decision DOCUMENT FOR PUBLIC RELEASE The decision issued on the date below was subject to a GAO Protective Order. This version has been approved for public release. Decision Matter of: Thales LAS France SAS File: B-422805 Date: August 30, 2024 Jason N. Workmaster, Esq., Alexandra Prime, Esq., and Ashley Powers, Esq., Miller & Chevalier Chartered, and Marc Reifsnyder de Chassey, Esq., Thales SA, for the protester. Amy Laderberg O'Sullliivan, Esq., Emily Golchini, Esq., aand Zachary Schroeder, Esq., Crowell & Moring LLP, and Anjali Chaturverdi, Esq., BAE Systems, Inc., for BAE Systems Technology Solutions and Services Inc., the intervenor. Erika Whelan Retta, Esq., and Christian H Robertson II, Esq., United States Air Force, for the U.S. Space Force, the agency. Michael Willems, Esq., and Evan D. Wesser, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest challenging the decision of a prime contractor to refuse to sign an end user certificate with the protester in connection with a subcontract procurement is dismissed where the procurement was not by the government and the agency awarding the prime task order has not requested that subcontract protests be decided by our Office. DECISION Thales LAS France SAS, of Limours, France, protests the conduct of a subcontract procurement by BAE Systems Technology Solutions & Services, Inc. (BAE), of Falls Church, Virginia, under solicitation No. MS-23-057, issued by BAE for radar arrays. The protester contends that BAE, acting as the United States Space Force's representative, has erred in refusing to sign an end user certificate to permit Thales to transmit its complete subcontract proposal. We dismiss the protest for lack of jurisdiction. The jurisdiction of our Office is established by the bid protest provisions of the Competition in Contracting Act (CICA), 31 U.S.C. sections 3551-3557. Under CICA, our Office has jurisdiction to resolve bid protests concerning solicitations and contract awards that are issued “by a Federal agency.” 31 U.S.C. § 3551(1)(A). Under this requirement, our jurisdiction generally does not extend to awards made by others “for” the government, and in the absence of a request by the federal agency concerned, we do not take jurisdiction over subcontract procurements conducted by prime contractors on behalf of the government. Compugen Ltd., B261769, Sept. 5, 1995, 95-2 CPD ¶ 103 at 3-4. We will take jurisdiction, however, where we find that a subcontract essentially was awarded “by” the government. The Panther Brands, LLC, B-409073, Jan. 17, 2014, 2014 CPD ¶ 54 at 4-6. That is, we have considered a subcontract procurement to be “by” the government where the agency handled substantially all of the substantive aspects of the procurement and, in effect, took over the procurement, leaving to the prime contractor only the procedural aspects of the procurement, i.e., issuing the subcontract solicitation and receiving proposals. Id.; St. Mary's Hosp. & Med. Ctr. Of San Francisco, Cal., B-243061, June 24, 1991, 91-1 CPD ¶ 597 at 5-6. In contrast, we have found subcontractor procurements are not “by” the government where the prime contractor handled meaningful aspects of the procurement, such as preparing the subcontract solicitation and evaluation criteria, evaluating the offers, negotiating with the offerors, and selecting the awardee. Raytheon Co., B-415722 et al., Dec. 28, 2017, 2018 CPD ¶ 56 at 5. The agency requests that we dismiss the protest in this case because, while the agency issued a task order request for proposals (RFP) to BAE, BAE is solely responsible for conducting the subcontract procurement that the protester is challenging. Agency Req. for Dismissal at 6-10. Specifically, BAE issued the subcontract RFP, received proposals from prospective subcontractors, evaluated them, and made a source selection decision. Id. Following that process, BAE submitted its proposal in response to the agency's task order RFP, but the agency has not yet issued a task order to BAE. Id. Of note the agency represents that it has had no role in BAE's selection of subcontractors, other than to provide a list of six possible sources at the outset of the selection process. Id.