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Standardization Decisions Violated CICA, Procurement Enjoined

A procurement for an e-mail messaging system that restricted competition to one software provider's system was preliminarily enjoined by the Court of Federal Claims because the determinations and findings cited in the limited source justification violated the Competition in Contracting Act and FAR Subpart 6.3. The protester challenged the process by which the government restricted competition for a messaging system. Even though it was aware of the protester's product and claim it had obtained the necessary security certification, the government issued two D&Fs that established a competitor's software as the "[d]epartment-wide standard for [m]essaging and [c]ollaboration" and "computer operating, system desktop and service, office automations, and systems management software." The government relied on the D&Fs in its limited source justification, which authorized the exclusive procurement of the competitor's product.

No Proper Justification

However, the official who issued the D&Fs was not a contracting officer, as required by 41 USC 253(f)(1)(A). The D&Fs concerned an amount exceeding $50 million, and the official also was not the agency's senior procurement executive, as required by Section 253(f)(1)(B)(iii). In addition, negotiations for a sole-source contract commenced months before the D&Fs were issued, in violation of FAR 6.303-1(a). The D&Fs also did not meet the requirements under FAR 6.303-2 for a proper justification for contracting without full and open competition. They did not identify the relevant statutory authority, and the "anticipated cost" discussion did not consider embedded costs, including the cost of "organizational lock-in,"and did not include the required statement that anticipated cost would be fair and reasonable. Further, the D&Fs did not list interested sources or state the planned actions to remove barriers to competition. In addition, the other requirements for preliminary injunctive relief were met. Without injunctive relief, the government intended to award a contract that would achieve organizational lock-in that would deprive the protester of the opportunity to compete and cause it immediate and irreparable harm. Compliance with CICA and the FAR served the public interest. The public interest outweighed any inconvenience to the government, which, given the procurement's time line, was de minimis. (Google, Inc., et al. v. U.S., et al., FedCl, 55 CCF 79,509)




(The news featured above is a selection from the news covered in the Government Contracts Report Letter, which is published weekly and distributed to subscribers of the Government Contracts Reporter. )


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