Mistral Inc. ()

B-422905,B-422905.2 Dec 13, 2024 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Mistral, Inc., a women-owned small business of Bethesda, Maryland, protests the award of sole-source contract No. W91CRB24D0011 to AeroVironment, LLC, of Simi Valley, California, awarded by the Department of the Army for loitering munitions weapons systems and related services. The protester primarily argues that the determination and findings (D&F) prepared by the agency is insufficient to justify the award of the contract on a sole-source basis. We deny the protest. View Decision Decision Matter of: Mistral Inc. File: B-422905; B-422905.2 Date: December 13, 2024 R. Locke Bell, Esq., Caitlin A. Crujido, Esq., and Markus G. Speidel, Esq., Morrison & Foerster LLP, for the protester. Kara L. Daniels, Esq., and Roee Talmor, Esq., Arnold & Porter Kaye Scholar LLP, for AeroVironment, Inc., the intervenor. Debra J. Talley, Esq., and Adam G. Caudle, Esq., U.S. Army Materiel Command, for the agency. Michael P. Price, Esq., and John Sorrenti, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest challenging the agency’s award of a sole-source contract pursuant to temporary acquisition authority is denied where the record demonstrates the agency’s written determination and findings (D&F) was sufficient to support the use of the authority for other than full and open competitive procedures. DECISION Mistral, Inc., a women-owned small business of Bethesda, Maryland, protests the award of sole-source contract No. W91CRB24D0011 to AeroVironment, LLC, of Simi Valley, California, awarded by the Department of the Army for loitering munitions weapons systems and related services. The protester primarily argues that the determination and findings (D&F) prepared by the agency is insufficient to justify the award of the contract on a sole-source basis. We deny the protest. BACKGROUND This protest involves complex and unique procurement and procedural histories and amendments to relevant procurement statutes and regulations. We discuss each in more detail below. History of the Army’s Loitering Munitions Requirement[1] On December 9, 2022, U.S. Army Futures Command[2] issued a “Directed Requirement” memorandum, establishing a requirement for the agency’s acquisition of loitering munitions.[3] COS/MOL at 4; AR, Tab 4, Directed Requirement for Lethal Unmanned Systems for Infantry Brigade Combat Teams. In May 2023, the Army transferred responsibility for the requirement to Program Executive Office Soldier, which “began execution of the requirement through the LASSO [low altitude stalking and strike ordnance] program.” COS/MOL at 4. In carrying out the LASSO program, the Army held an industry day in September 2023, which was attended by several firms interested in meeting the agency’s requirement. The Army then issued a follow-up request for information (RFI) on October 13. Id. Both Mistral and AeroVironment responded to the RFI, with each firm proposing their respective solutions to the Army’s loitering munitions requirement. Id. at 4-5. The agency toured multiple offerors’ facilities around this same time to gain further information about their manufacturing capabilities. Id. at 5. The Army subsequently issued a draft request for proposals to multiple offerors, including Mistral and AeroVironment, for the LASSO program requirements. Id. In August 2023, around the same time the Army was planning and initiating the LASSO program and gathering information as described above, the Department of Defense initiated the “Replicator program.” Id. The objective of the Replicator program was “to field all-domain, attritable autonomous low-cost systems,” with the intention of “fielding thousands of uncrewed systems by August 2025.” Id. at 5-6. The Army selected the LASSO program “to support the [Department of Defense’s] Replicator initiative and merged those efforts in early 2024.” Id. at 6. With the requirements of the Replicator initiative dictating an August 2025 delivery date to meet the Department of Defense’s first loitering munitions requirement, the agency states it was “required to accelerate the LASSO award and delivery schedule.” Id. Relevant Statutory and Regulatory Authorities The requirements for Department of Defense procuring agencies to use other than competitive procedures are at 10 U.S.C. § 3204 and its implementing regulations, Federal Acquisition Regulation (FAR) subpart 6.3. The FAR prescribes seven exceptions to the general requirement that agencies use full and open competitive procedures for the procurement of property and services. See FAR 6.3. As relevant to the protest, the public interest exception states that “[f]ull and open competition need not be provided for when the agency head determines that it is not in the public interest in the particular acquisition concerned.” FAR 6.302-7(a)(2).