Link: GAO Decision
Protestor: ASC Group, Inc.
Agency: Department of Defense, Defense Logistics Agency
Disposition: Protest Denied.
Protest that terms of the licensing agreement required by a solicitation for software were unduly restrictive of competition is denied where the agency’s market research reasonably supported the agency’s conclusion that these terms would best meet the agency’s needs.
General Counsel PC Highlight:
ASC Group, Inc. protested the terms of an RFP for a web-based commercial software quality management tool (QMT) and supporting services, on a concurrent-user licensing basis. Before issuing the RFP, the agency conducted market research to determine the availability of commercial QMT software, which demonstrated that this software was typically licensed as either a concurrent-user license, or as a name or seat license. Following its initial market research, the agency issued an RFI seeking additional information from interested vendors. It then analyzed the name licensing structure of the contract for its existing QMT and the results of the market research, and determined that a concurrent-user licensing structure would result in significantly lower prices and would allow the agency to better control software access centrally.
ASC protested that the agency unjustifiably restricted competition by requiring vendors to offer current-user licensing, and argued that the agency should allow offerors to propose other licensing structures. The GAO found that the record supported the reasonableness of the agency’s requirement for QMT software with a concurrent-user license. It noted that the market research supported the conclusions that small businesses are likely to compete for the agency’s QMT requirements and that concurrent-user licensing is commercially available, that it offers flexibility that supports the agency’s plans to increase its use of the QMT software, and that it is likely to result in cost savings.
If a prospective offeror believes that the terms of an RFP will unreasonably restrict competition, it is required to protest the terms of the solicitation prior to the time set for the receipt of proposals. However, so long as the agency provides adequate justification for the specification or requirement allegedly restricting competition, the GAO is unlikely to sustain the protest.