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Mythics, Inc. Protests an RFP issued by the Library of Congress

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Mythics, Inc. and Oracle America, Inc. protested terms of request for proposal (RFP) issued by the Library of Congress (LOC) to acquire cloud computing services. Protesters argued the RFP was unduly restrictive of competition.

Background

The RFP was based on a best-value tradeoff basis of a single fixed-price, indefinite-delivery, indefinite-quantity (IDIQ) contract to provide the LOC cloud computing products and services for a 5-year period of performance. It required offerors to provide pricing for a list of 13 products or services available for Amazon Web Services, Google Cloud Platform and Microsoft Azure. Offerors were required to provide “technical narrative” describing how they meet the requirements of the solicitation’s statement of work (SOW) and were encouraged to propose a solution that incorporates the “marketplaces.” The RFP did not include specific instructions relating to proposing cloud services of “other” vendors.

Analysis

LOC sought to have its protests dismissed. It sought to dismiss the protest based on its intention to take corrective action. The Government Accountability Office (GAO) declined to dismiss the protest. It considered the proposed corrective action was either too vague or failed to address the protest allegations. GAO noted the agency proposed three courses of action that would “render the protests academic.” GAO found the agency did not provide enough details to dismiss the complaint. It did not specify which courses of action it would take, nor when it intended to implement it.

Brand-Name Solicitation

The protesters argued the RFP was an “impermissible brand-name-only solicitation.” They asserted the RFP required offerors provide the 13 brand-name products specific to Amazon, Google, and Microsoft without the agency having executed the required justification and approval (J&A) for such limitation. They added the characteristics of those products that are needed to meet the agency’s requirements were not provided either.

GAO noted agencies are unable to describe their requirements using a brand-name product or service. According to FAR 11.105(a), they can only specify goods or services “peculiar to one manufacturer” where the agency indicates other companies’ products or services do not meet or cannot be modified to meet the agency’s requirements. GAO noted the record included a J&A that supported limiting competition to the named products identified in the RFP. The agency did not publish the J&A when it issued the solicitation, as required by FAR. LOC claimed its failure to publish the J&A became moot when it issued amendments to the RFP, changing the RFP into a “brand-name-or-equal solicitation. GAO disagreed.

GAO stated LOC did not modify the RFP as it described. It added, that the changes proposed did not address” in a meaningful way the issues related to identifying brand name products. It noted LOC indicated it would continue to solicit its SaaS requirements on a brand-name basis from Microsoft. It stated it would describe its cloud computing environments and require it to be provided in response to the RFP. GAO described this as a prohibited solicitation of products on a brand-named basis without executing the necessary J&A.

GAO found that adding contract line items for other products to the RFP did not provide information about what particular characteristics the other products need to meet to be equivalent to the brand name products solicited. It noted FAR’s requirement for agencies to include a general description of brand name characteristics that an “equal” product must meet to be acceptable for award. It added that the RFP did not include a list of these characteristics. It provided a list of LOC’s requirements that would have to be met by any cloud service provider. LOC argued this list of mandatory requirements was “essentially equivalent to a list of salient characteristics.” GAO disagreed. It found the list made no reference “specific characteristics peculiar to those brand-name products-that an equivalent product would need to meet in order to be considered acceptable.” GAO concluded the RFP inadequate due to the absence of “salient characteristics peculiar to the brand-name products that would have to be met by an alternate product.”

Solicitation of Online Marketplace

Protesters argued the RFP “impermissibly” required offerors to provide an “online marketplace” for third-party software applications. The protesters described the online marketplace as a mechanism for the agency to purchase pre-selected, third-party software products from cloud service providers without competition for the software applications. They argued that the marketplace performed an “inherently government function” because it eliminated responsibilities for the agencies to acquire goods and services using full and open competition. The agency asserted that the online marketplace services were an “adjunct to the cloud services providers’ overall product. It argued the protesters were not prejudiced by this requirement because they offered such an online marketplace.

GAO stated there was no way LOC could know whether the third-party software products would be the best solution the agency’s technical requirements, at a fair and reasonable price, or whether the third-party vendors would comply with other legal requirements required by the federal government. GAO found no documentation in the record that supported the agency’s decision and sustained this aspect of the protest.

Single Contract Award

The protesters asserted the RFP improperly based the award on a single IDIQ contract. They argued multiple IDIQ contract awards are preferred under the FAR. Where an agency awards a single IDIQ contract, the contracting officer is required to document the agency’s decision as a part of its acquisition planning activities. The protesters added that because the maximum value of the contract is $150 million, the agency is required to make multiple awards or execute a determination of a single contract as appropriate. LOC argued the RFP allowed for the possibility of multiple awards. It stated it intended to lower the maximum anticipated value of the contract below $112 million threshold by eliminating the possibility of other agencies using the contract.

GAO found the agency did not comply with the requirements of the FAR with respect to its single award strategy. It noted the record indicated LOC intended to make a single award unless it was not possible based on the proposals it received. GAO stated the agency did not execute the contracting officer’s determination that a single award was appropriate. Also, the RFP stated the anticipated contract of the contract was estimated at $150 million, which exceeded the threshold amount necessary to require the head of the LOC determine in writing that a single award was appropriate. GAO found nothing in the regulation that would require this determination be made until when it would be ready to award a contract. GAO sustained the protest on this area as well.

Conclusion

GAO sustained the protest. It recommended the LOC amend the solicitation and provide offerors the opportunity to respond to the revised solicitation. For more information on protesting agency contract decisions, contact Whitcomb Selinsky PC at (303) 534-1958.

About the AuthorRaymundo Ribota

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