E.K.K. Investments, LLC (B-423246.1)

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Category: Noncompetitive procurement, J&A, overseas contracting

Date: 25 March 2025

URL: https://www.gao.gov/assets/b-423246.pdf

EKK Investments protested the Defense Commissary Agency's (DeCA’s) establishment of a blanket purchase agreement with Coastal Pacific Food Distributors (CPFD) for fresh fruits and vegetables in Korea. The protest centers on DeCA’s use of noncompetitive procedures without issuing a justification and approval (J&A) and its failure to solicit offers from as many sources as practicable—both in violation of the Competition in Contracting Act (CICA) and the FAR.

Failure to issue a justification and approval: DeCA argued that 10 USC §2484(f), which permits noncompetitive acquisition of commercial items for resale at commissaries, exempted it from issuing a J&A. GAO disagreed, emphasizing that §2484(f) allows use of noncompetitive procedures but requires a J&A under §3204(e) unless the procurement is for brand-name items. Because DeCA was procuring generic produce, it remained bound by the J&A requirements.

Failure to solicit from as many sources as practicable: GAO also held that issuing an RFI to six companies—explicitly stating it was not a solicitation—did not satisfy FAR 6.301(d), which mandates agencies solicit offers from as many potential sources as practicable when using noncompetitive procedures. The RFI did not result in an offer or contract formation opportunity, and DeCA did not justify why it could not issue a solicitation to more sources.

GAO sustained the protest, recommending the BPA’s cancelation either competing the requirement or complying with noncompetitive procedure rules, including issuing a J&A and properly soliciting offers. It also recommended that DeCA reimburse EKK for protest costs.

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.