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CFC Sustains Protest of Contractor Procurement

A protest of the government's decision to permit a contractor to award software subcontracts in place of a proposed direct procurement was sustained by the Court of Federal Claims because the government failed to justify the decision and to consider the effect on competition as required by the Competition in Contracting Act. The protest concerned an information technology project where the government first issued requests for information from potential software vendors but then chose to procure the requirements through an existing Government Wide Acquisition Contract task order. The GWAC contractor then awarded subcontracts to software vendors. The protesters contended the decision to combine two separate proposed direct software procurements and task them to the GWAC contractor deprived them of an opportunity to compete without any rationale.

Not Justified

The court invoked the general principle that the government must provide "a coherent and reasonable explanation of its exercise of discretion." Here, the government offered no reasoning for foregoing a direct procurement, and the need to have the GWAC contractor integrate the software products did not preclude the government from procuring the products directly and separately. The government's failure to adequately support the deviation from the proposed direct procurement resulted in non-trivial competitive injury to the protesters. In addition, the competitive process for selecting the software provider under the task order was not equivalent to direct government procurement, because that process was not constrained by federal procurement law. The court concluded the government's failure to consider the effect on competition as mandated by CICA also resulted in a non-trivial competitive injury and was another ground for sustaining the protest. Because the subcontracts had expired, the court granted the protesters' request to file an application for proposal preparation costs. (Distributed Solutions, Inc., et al. v. U.S., FedCl, 56 CCF 79,810)




(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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