Software Selection Decision Was Improper Sole Source Award

According to the Court of Federal Claims, the government's selection of two software products as its baseline for a consolidation initiative was improper because it constituted a sole source procurement that violated the Competition in Contracting Act's full and open competition requirements. The dispute arose following the government's issuance of a Brand Name Justification selecting two financial management software applications as the baseline for a software consolidation initiative. After the government issued a task order under an existing indefinite delivery, indefinite quantity contract for software migration services to integrate the software, the protester filed its complaint, arguing the baseline software should have been selected through an open competition. The government moved to dismiss the protest for lack of jurisdiction, arguing its actions amounted to a decision to standardize software, not a procurement. The government based its argument on a recent decision, Ezenia!, Inc. v. U.S. (52 CCF ¶78,870), which held a software standardization decision was not a procurement decision within the CFC's bid protest jurisdiction. The government also asserted there was no CICA violation because the task order was issued under the Federal Acquisition Streamlining Act, which excludes task orders from being challenged in a bid protest as long as "the task or delivery order contract itself has been obtained through full and open competition." Finally, the government asserted the protester was not an interested party and therefore lacked standing to raise the protest.

On the protester's motion for judgment on the administrative record, the CFC sustained the protest and enjoined the task order, finding the government's selection of the software was an improper sole source procurement. The protester was a supplier of financial management software that was based on one of the selected software platforms, which was sufficient to establish its status as an interested party. The contents of the justification suggested the government was using it to avoid CICA's full and open competition requirements, and the government's use of at least three other financial software systems suggested there were at least three additional responsible sources. As the protest focused on the selection of the baseline software, as opposed to the ID/IQ solicitation, the FASA exception to CICA's mandate of full and open competition was inapplicable. The award was arbitrary and capricious because all of the reasons cited by the government in its justification applied with equal force to the software offered by the protester, and the government offered no reasonable basis for its selection of the baseline software. The government's reliance on Ezenia! was unfounded because the standardization decision in that case was made through a competitive process. (Savantage Financial Services, Inc. v. U.S., FedCl, 52 CCF ¶78,923)

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