E.K.K. Investments, LLC ()

B-423246 Mar 25, 2025 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights E.K.K. Investments, LLC d/b/a EKK Investments LLC, of Los Angeles, California, protests the establishment of a blanket purchase agreement (BPA) with Coastal Pacific Food Distributors, Inc. (CPFD), of Stockton, California, by the Defense Commissary Agency (DeCA) to procure fresh fruits and vegetables for resale at commissary stores. The protester argues that DeCA failed to comply with the requirements for using other than competitive procedures when it established the BPA. We sustain the protest. View Decision Decision Matter of: E.K.K. Investments, LLC File: B-423246 Date: March 25, 2025 Keith R. Szeliga, Esq., Sheppard Mullin Richter & Hampton LLP, for the protester. Shomari B. Wade, Esq., Michael J. Gardener, Esq., Jordan N. Malone, Esq., and Olivia C. Bellini, Esq., Greenberg Traurig LLP, for Coastal Pacific Food Distributors, Inc., the intervenor. Lance H. Locke, Esq., and Brett J. Sander, Esq., Defense Commissary Agency, for the agency. Michelle Litteken, Esq., and Christina Sklarew, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest challenging agency’s establishment of a blanket purchase agreement for fresh fruits and vegetables using other than competitive procedures is sustained where the agency did not issue a justification and approval and did not solicit offers from as many sources as practicable. DECISION E.K.K. Investments, LLC d/b/a EKK Investments LLC, of Los Angeles, California, protests the establishment of a blanket purchase agreement (BPA) with Coastal Pacific Food Distributors, Inc. (CPFD), of Stockton, California, by the Defense Commissary Agency (DeCA) to procure fresh fruits and vegetables for resale at commissary stores. The protester argues that DeCA failed to comply with the requirements for using other than competitive procedures when it established the BPA. We sustain the protest. BACKGROUND On August 23, 2024, DeCA emailed a request for information (RFI) to six companies that had been identified as potential sources to provide fresh fruits and vegetables to commissary stores in Korea. Agency Report (AR), Exh. 1, RFI[1]; Contracting Officer’s Statement (COS) ¶ 6. The email stated: “The purpose is to benchmark industry capabilities, best practices, use of data, and communication and transportation standards with regard to fresh fruits and vegetable processes. NOTE: THIS IS NOT A SOLICITATION FOR PROPOSALS; THIS IS A REQUEST FOR INFORMATION (RFI) ONLY.” AR, Exh. 1, RFI. A draft BPA and a document with 15 questions were attached to the email.[2] AR, Exh. 1, RFI; AR, Exh. 2, Draft BPA; AR, Exh. 3, Evaluation Questions. On September 10, DeCA provided answers to questions from the companies concerning the draft BPA. COS ¶ 9. In its written responses, DeCA advised that it intended to establish the BPA with a single source, presuming satisfactory performance. AR, Exh. 4, BPA Questions and Answers at 362. DeCA received responses to the RFI from four of the six companies, including EKK Investments and CPFD. COS ¶ 10; AR, Exh. 9, CPFD Resp.; AR, Exh. 22, EKK Resp. After reviewing and scoring the responses to the RFI, DeCA determined it was in the agency’s best interest to establish the BPA with CPFD.[3] COS ¶ 15; AR, Exh. 41, Agency Memorandum, Oct. 1 at 299-300.1. On November 5, the contracting officer prepared a memorandum documenting the agency’s decision to purchase fresh fruits and vegetables for resale at commissary stores in Korea using procedures other than full and open competition pursuant to sections 2484(f) and 3204(a)(5) of title 10 of the United States Code. COS ¶ 13; AR, Exh. 5, Agency Memorandum, Nov. 5. Subsequently, on December 10, the agency established a BPA with CPFD. COS ¶ 16. DeCA did not issue a justification and approval (J&A) document. Also on December 10, the protester emailed the contracting officer, asking if the agency would be issuing a solicitation for the BPA. COS ¶ 20. On December 12, the contracting officer informed EKK Investments that the BPA had been established with CPFD. Id. On December 23, EKK Investments filed this protest with our Office.[4] DISCUSSION EKK Investments contends that DeCA failed to comply with the requirements for using other than competitive procedures when it established the BPA with CPFD.[5] Protest at 2; Comments at 1. Specifically, the protester argues that the agency failed to issue a J&A, and it failed to solicit offers from as many sources as practicable. DeCA responds that it was not required to execute a J&A or solicit offers from as many sources as practicable because section 2484(f) of title 10 of the United States Code permits the agency to procure any commercial product for resale at commissary stores without competition.