Link: GAO Opinion
Agency: Internal Revenue Service
Disposition: Protest denied.
1. Agency reasonably found awardee’s proposed system to be commercially available where it was of a type customarily used by, and had been sold to, the general public, in accordance with the Federal Acquisition Regulation definition incorporated by the solicitation, as amended.
2. Protest that awardee’s proposal was technically unacceptable, because the awardee did not propose a Braille study function, is denied where the solicitation did not require such a function.
General Counsel P.C. Highlight:
EVAS argues that ITG’s proposal should have been rejected because ITG’s proposed monitor is not commercially available. In this regard, EVAS asserts that ITG’s proposed monitor has not been produced by the manufacturer for nearly a year and that the protester was informed that the monitor was out of stock, obsolete, or discontinued when it attempted to purchase the monitor from the manufacturer or resellers.
As noted above, the RFP, as amended, informed offerors that the definition of commercial item in FAR sect. 2.101 would be used to determine whether an offered item was commercially available. The FAR defines an item to be commercially available if it is of a type customarily used by the general public and has been sold, leased, or licensed to the general public. Here, it is not disputed that ITG’s monitor is of a type customarily used by the general public and has been sold to the general public. Neither the FAR definition, nor any other requirement in the solicitation, requires that an offered item either must be in current production, or must currently be sold to the general public. Therefore, GAO finds reasonable the agency’s determination that ITG’s monitor was commercially available.
The protester also argues that ITG’s proposal should have been rejected as technically unacceptable because ITG’s proposed Braille display system was not compatible with the JAWS [Job Access with Speech] Screen Reader Software, as required by the RFP.
The IRS responds that it is true that ITG’s proposed Braille display system does not support the Braille study function in the JAWS software. The agency states, however, that the Braille study function–which is a training tool for teaching and learning Braille–was not required by the solicitation. The agency explains that ITG’s proposed Braille display system performs these tasks, and is thus compatible with the JAWS screen reader software. The RFP’s training requirements provide for training in the use of the software and not providing Braille training. In this regard, the protester does not cite to any part of the RFP that specifically requires that the contractor support a Braille study function. Rather, GAO finds that the RFP provides that the awardee’s proposed software must support Braille displays, that is, the proposed software be able to display screen content in Braille. Given that ITG’s Braille display system performs this function, GAO finds reasonable the agency’s determination that the awardee’s Braille display system was compatible with the JAWS software. The protest is denied.