ber 1993. FTV-3 contemplated a May 1994 launch of only the interceptor missile (no target vehicle was involved), incorporating all the data learned from FTV-1 through FTV-TD. FTV-4 contemplated a July 1994 launch of both the target vehicle and the interceptor. FTV-5 contemplated an October 1994 attempt to intercept the target vehicle with the interceptor missile. The TRD required a back-up target vehicle to support the FTV-4 and FTV-5 launches as a contingency should the primary launch vehicle not be ready to launch.4

The TRD stated various size, weight, and performance requirements for the target vehicle and specified ground support equipment requirements. In addition, the TRD provided that the target vehicle should be:

designed to optionally include a GPS [global positioning system] receiver to provide accurate position and attitude data during the mission. The GPS receiver will be used to verify range radar tracking accuracy and target vehicle performance in the target demonstration flight. A GPS receiver will be optional on FTV-4 and FTV-5 for further verification of radar and vehicle performance and as a potential back-up for the LEAP fire control solution.

Initially, BMDO program officials presumed that the four required Aries target vehicles would be procured from Orbital under Contract No. SDIO84-90-C-0004 between BMDO and Orbital.5 Under this contract, Orbital provided target vehicles and launch services in support of BMDO's Flight Test Services Program.6 See Space Servs. Inc. of Am.; Space Vector Corp., B-237986; B-237986.2, Apr. 16, 1990, 90-1 CPD || 392. On October 2, 1992, due to a lack of funding for fiscal year 1993, BMDO stopped work on 5 of the 15 LEAP programs under the contract. At that time, Orbital was building four Aries target vehicles for one of the canceled LEAP programs; the Aries vehicles were estimated to be approximately 80 percent complete. On December 21, 1992, Orbital's contract was partially terminated for the convenience of the government; this included the program for which Orbital was building the four Aries vehicles.

In late November 1992, BMDO's contracting officer decided that Orbital's prior contract should not be modified to provide the necessary launch services for the Navy LEAP target demonstration program. The contracting officer was concerned that the probable increased contract costs entailed in the Navy LEAP launches could be considered a "cardinal change" beyond the scope of the original contract. Accordingly, BMDO's launch services director was informed that the Navy LEAP launches should be either acquired competitively or, if appropriate, through a sole source procurement. The launch services director was also informed that a competitive acquisition would ordinarily take about 6 months. Given the time estimated to conduct a competitive procurement and the time required for design, development, fabrication and testing by a contractor to

4 If the back-up vehicle was not required for either FTV-4 or FTV-5, BMDO intended to launch it on a subsequent test project not later than November 1994.

5 The November 24, 1992, TRD originally identified Orbital as the source for the target vehicle. The TRD was later amended to remove any reference to Orbital.

6 Orbital was required to provide and launch up to 20 target vehicles.

7 At least as early as October 21, 1992, BMDO program officials had determined that four Aries target vehicles would be required to satisfy the Navy LEAP program requirements, which BMDO believed could be provided under Orbital's existing contract.

meet the launch requirements, the launch services director concluded that only Orbital, by virtue of its prior contract work and available assets, could provide the launches within the time required. On January 19, 1993, the launch services director requested that Orbital be "turned-on' contractually by the end of next week." The launch director was advised that a CBD announcement of the sole source action must be published before any such action could be commenced. On January 26, 1993, BMDO prepared a purchase request to acquire the Navy LEAP launches from Orbital on a sole source basis.

On February 9, BMDO published a synopsis in the Commerce Business Daily (CBD) for the proposed sole source procurement of the Navy LEAP launches from Orbital. In pertinent part, potential offerors were informed that:

[BMDO] intends to award a cost-plus-fixed-fee letter contract to [Orbital] for launch and integration services for four . . . LEAP technology, demonstration, suborbital targets which consist of an Aries I booster (M56A1) with a support avionics and control section. The target vehicle must have the ability to achieve approximately 350 kilometers (km) apogee and a range of approximately 500 km. The integration services include all necessary services and mission peculiar items required to develop acceptable targets for the Navy LEAP Seekers. The launch dates for the Navy LEAP targets are October 1993, July 1994, and September 1994. Two (2) target vehicles, a primary and back-up, will be required for the July and September 1994 launches with the back-up being launched at a [to be determined] date. [Orbital] is the only known source with launch vehicle assets capable of meeting the October 1993 launch date. Interested contractors who are capable of meeting the October 1993 launch date are invited to submit a qualification package to include photographs of hardware, status of all relevant assets, detailed milestone schedules and performance capability which demonstrates the ability to provide a qualified launch vehicle and available assets to support the October 1993 and subsequent launch dates.

The qualification packages were required to be submitted within 15 days of the date of the CBD synopsis. The TRD was not provided to potential offerors, although Orbital received a copy of the TRD from BMDO's SETA contractor on December 1, 1992.

On February 11, BMDO issued Task Order No. 93-1 under Orbital's prior contract for services in support of the Navy LEAP program, whereunder Orbital was required to provide "engineering efforts to establish Navy LEAP target mission requirements, mission planning concepts, system engineering, vehicle configuration, and detailed engineering design flowdowns." Orbital was informed that the TRD should be used as the "baseline" to develop mission requirements and hardware design. On that same date, Orbital submitted its task plan in response to the task order. In response to the task order, Orbital prepared several documents: the Mission Requirements Document (that defined the top-level mission requirements); the System Requirements Document (that traced the mission requirements to design requirements); and the System Design Document (that documented the actual design of the system).

8

On February 23 and 24, BMDO received qualification packages from Space Vector and Lockheed Missile and Space Co. Both were determined to be not qualified for similar reasons. Regarding Space Vector's package, BMDO deter

8 Orbital received an advance copy of the task order on January 15 and began work on the task plan at its own risk.

9

mined that Space Vector's proposed 8-month schedule to perform the October 1993 target demonstration launch was 5 months beyond the required October launch date, assuming a date of July 15 for contract authority to proceed. This proposed 8-month effort was believed by BMDO to be overly optimistic in any case, even assuming the necessary limited competition could be completed earlier. Of greatest concern to BMDO was that Space Vector did not propose a GPS receiver or propose any time in its schedule for integrating the receiver onto their missile.10 Finally, BMDO evaluated Space Vector's package as providing for only three target vehicles, and not the required back-up vehicle. During the week of March 15, BMDO conducted various oral discussions with Space Vector concerning Space Vector's proposed schedule and its apparent failure to provide for a back-up vehicle. On March 23, Space Vector provided additional information to BMDO supporting its proposed schedule and showing that it provided for a back-up vehicle. Space Vector also stated that it had learned “that technical and programmatic criteria other than that called for in the CBD may be used in the procurement of the Navy LEAP targets" and requested this further information. Space Vector was never provided with the TRD during the qualification process, even though the record shows that this document was the basis on which its qualification package was evaluated.11

On March 25, BMDO submitted several written questions to Space Vector that in part stated that the "Mission Requirements Document states a requirement to have a GPS receiver on the target vehicle to provide location information to validate range radar data. This requires that the GPS data be transmitted realtime to the receiving station."12 BMDO asked Space Vector whether it could easily integrate the GPS receiver onto its existing target vehicle configuration and how long the effort would take. Space Vector replied that it could perform the necessary GPS integration within its original 8-month schedule and, specifically, that "[i]ntegration and check-out of [the GPS] units, along with the other required components can be accomplished in two to four months, depending on mission requirements."

After evaluating Space Vector's responses to the agency's discussions, BMDO determined that Space Vector could not provide the contract services within the time required.13 Specifically, the agency estimated that Space Vector would require approximately 12 to 18 months to fully integrate and test a GPS system, and that this would delay the October 1993 launch, which was considered to be

• The contract authority to proceed date was calculated assuming a 5-month limited competition procurement cycle. 10 Space Vector had not been informed that a target vehicle GPS system was required, so it is hardly surprising that it did not address this requirement.

11 Space Vector claims that BMDO's evaluation of its submission was also based upon the documents Orbital had prepared under Task Order No. 93-1. While BMDO denies these assertions, there is evidence in the record that supports Space Vector's claims. However, inasmuch as Space Vector cannot meet BMDO's actual requirements concerning the GPS system that were otherwise identified in the TRD and to Space Vector, Space Vector was not prejudiced by any reference to Orbital's designs.

12 The record indicates that this is the first time that Space Vector was informed of the GPS receiver requirements in the Navy LEAP project.

13 Lockheed also received discussions and was determined to be not qualified for similar reasons.

a firm date, by more than 7 months. 14 The agency also questioned whether Space Vector could perform the necessary range support services within the time required.

On April 23, BMDO's acting director, pursuant to 10 U.S.C. § 2304(c)(1) (1988) as implemented by Federal Acquisition Regulation (FAR) § 6.302-1(a), signed a justification and approval (J&A) document for a sole-source award to Orbital "as the only known source with available and acceptable launch vehicle assets which is capable of meeting the required launch date." The J&A stated several reasons in support of the sole-source decision: (1) there was unacceptable technical and schedule risk that Space Vector and Lockheed would be unable to meet the October 1993 demonstration launch date; specifically, the two firms "could not perform the required end to end integration of the GPS receiver15 without an estimated 7 [to] 11 month [delay in] the production schedule"; (2) the October 1993 launch date could not reasonably be delayed because it was coordinated and integrated with several other events; for example, the launch was coordinated with the availability of Navy LEAHY class TERRIER missile cruisers1 that are scheduled for decommissioning by October 1994, and was integrated with a number of BMDO, Air Force, Army and Navy assets and programs, such as the Miniature Sensor Technology Integration (MSTI-2) satellite that will track the Aries target vehicle to provide data necessary to evaluate space-based passive sensor tracking capability;17 and (3) only Orbital had access to the required hardware necessary to satisfy the October 1993 launch-specifically, work-in-progress Aries target vehicles and miscellaneous hardware (including GPS receivers and ground stations) were available as termination inventory from Orbital's prior contract. The J&A cited the consumption of these assets as further justification for the use of non-competitive procedures as follows:

16

Providing these assets to another contractor would require the assets to be provided as [g]overnment [f]urnished [p]roperty (GFP) without firm knowledge by either the [g]overnment or the receiving contractor of the condition or stage of completion of the assets, which may not be compatible with the receiving vehicle, potentially leading to performance problems and claims.

After being notified of the rejection of its qualification package, Space Vector protested to our Office on May 3. Award of a cost reimbursement contract was made to Orbital on May 19, based upon the agency's written determination that

14 A schedule of 12 months was considered optimistic by BMDO, while 15 to 18 months was considered a more probable schedule.

15 BMDO states that:

end to end integration of GPS receiver into an existing launch vehicle requires significant up front design and analysis not only in choosing and procuring flight hardware but also in the development of ground support equipment, software, and operational requirements. Complete testing must be conducted to determine the interactions between GPS and all other flight systems.

16 The "TERRIER" missile is a type of missile and associated weapon system. The Navy for its part of the LEAP testing program will use a TERRIER missile variant known as the STANDARD Missile 2, Block-II/III (Extended Range). This is the only missile in the Navy's inventory with the performance capability to launch the LEAP. Only the LEAHY and BELKNAP class cruisers can launch this TERRIER missile, and only the LEAHY class cruisers have the requisite number of missile launchers and radars.

17 The MSTI-2 satellite was scheduled for launch in September 1993, and has an estimated life of 6 months. The agency states that historically the MSTI satellite's useful life has been shorter than that originally estimated. This satellite will perform many more functions than just monitoring the Navy LEAP tests.

urgent and compelling circumstances would not permit the agency to await our decision in this matter.

Space Vector disputes the agency's determination that Space Vector could not provide the required target vehicles, with integrated GPS receivers and ground stations, by the October 1993 launch date; in this regard, Space Vector contends that it was treated unfairly by BMDO because the Aries target vehicles and GPS receivers will be provided to Orbital as GFP (from Orbital's partially terminated contract) while BMDO required Space Vector to provide its own assets. Space Vector also argues that the integration of GPS receivers on the target vehicle and the requirement for an October 1993 target demonstration launch are not essential agency requirements that would justify a determination that Space Vector was not a qualified source; that BMDO failed to conduct advance procurement planning that would have allowed a competitive procurement even if the agency did require an October 1993 launch; and that BMDO does not have a reasonable basis to bundle the remaining target vehicle launches with the October 1993 target demonstration launch.

While the overriding mandate of the Competition in Contracting Act of 1984 (CICA) is for "full and open competition" in government procurements through the use of competitive procedures, 10 U.S.C. § 2304(a)(1)(A), CICA does permit noncompetitive acquisitions in specified circumstances, such as when only one responsible source is available and no other type of property or services will satisfy the agency's needs. 10 U.S.C. § 2304(c)(1); Kollsman, a Div. of Sequa Corp.; Applied Data Tech., Inc., B-243113; B-243113.2, July 3, 1991, 91-2 CPD ¶| 18; Petro Star, Inc., B-248019, July 27, 1992, 92-2 CPD || 34. When an agency uses noncompetitive procedures under 10 U.S.C. § 2304(c)(1), it is required to execute a written J&A with sufficient facts and rationale to support the use of the specific authority, see 10 U.S.C. § 2304(f)(1)(A) and (B); FAR §§ 6.302-1(c); 6.303; 6.304, and to publish notice of the sole source action in the CBD. 10 U.S.C. § 2304(f)(1)(C); 41 U.S.C. § 416(b)(5). Where the agency has substantially complied with CICA's procedural requirements, we will not object to a reasonably justified sole-source award. Environmental Tectonics Corp., B-248611, Sept. 8, 1992, 92-2 CPD 160. A sole-source award is justified where the agency reasonably concludes that only one known source can meet its needs within the required time, except where the noncompetitive situation arises from a lack of advance procurement planning. Servo Corp. of Am., B-246734, Mar. 31, 1992, 92-1 CPD ¶ 322, recon. denied, B-246734.2, Aug. 6, 1992, 92-2 CPD ¶ 75.

As described in detail below, we conclude that BMDO reasonably determined that only Orbital could satisfy the agency's Navy LEAP program requirements within the time required. We also conclude that the October 1993 launch and the requirement for the integration of a GPS receiver reasonably reflected the agency's actual needs at the time of Space Vector's disqualification and the sole source award, and that BMDO's conclusion that Space Vector could not perform the program work within the time required was not based upon a lack of advance procurement planning.