This post was also written by Steven D. Tibbets.
A recent U.S. Court of Federal Claims bid protest decision illustrates how one agency’s apparent attempt to award a sole-source contract without making the findings to justify the award was unlawful, though, ultimately, the protest challenging award was not successful. The Court’s decision in Mobile Medical International Corp. v. United States, demonstrates a situation in which a sole-source award was mis-handled by the agency and subsequently set aside following a protest. In our experience, there are times when contractors suspect that their competitors have been “pre-selected” or just seem to have the inside track for certain contract awards even when those awards are not, technically, sole source. This case may serve as helpful authority in challenging such awards.
In Mobile Medical, the Government engaged in sole source pre-award negotiations with a contractor for a particular type of mobile medical trailer. At the time of the negotiations, neither the contractor, nor any other vendor offered the specific type of trailer the Government needed via an FSS contract. The Government then issued an FSS request seeking quotes for those trailers. After the closing date for the receipt of quotes, the Government permitted the contractor to add the trailers of the type the Government needed to the contractor’s FSS contract. At that point, the Government awarded the order to the contractor. The Court determined that this procedure was improper and amounted to “targeted pre-selection of contractors outside the FSS system, which is inconsistent with the FSS system, as well as the general goals of fair and open competition espoused in” Government procurement laws. The Court ultimately denied the protest, however, because the protester had failed to establish that it would have been in line for award if the Government had handled the procurement properly.
This case illustrates why it is generally better for Government procurement personnel to conduct competitive procurements even where the agency has a particular vendor it believes will be the best or only vendor to respond to a solicitation. In this case, even though the Government issued an RFQ on which anyone, ostensibly, could compete, the Court criticized this procedure as a de facto sole-source award in light of the surrounding circumstances.