Link: GAO Opinion
Agency: Department of Homeland Security
Disposition: Protest sustained.
Keywords: Protesting the Terms of a Solicitation
General Counsel P.C. Highlight: An agency may include requirements that restrict competition in a solicitation only to the extent they are necessary to satisfy its legitimate needs.
NCS Technologies, Inc. (NCS) protests the terms of a request for quotations (RFQ), issued by the Department of Homeland Security (DHS), for computer hardware.
The RFQ was issued to DHS’s First Source contract holders and several small vendors on the General Services Administration’s (GSA) Federal Supply Schedule (FSS) 70, provided for establishing a blanket purchase agreement with a five-year term for commercial off-the-shelf laptops, desktops, and monitors. Among the requirements identified for the computers and monitors was that all of the computers and monitors must be from the same manufacturer and must use an Intel-based microprocessor. Vendors were also informed that they must submit with their quotations, “a 3rd party review less than 2 years old such as that provided by ‘Square Trade, PC Magazine, Byte, etc.’ demonstrating that the proposed manufacturer suite of equipment has been rated average or above in reliability as show in the report provided.”
NCS objects to the requirement that all computers and monitors be from the same manufacturer and that the computers use an Intel-based microprocessor. NCS also objects to the third party review requirement.
GAO states that although a contracting agency has the discretion to determine its needs and the best method to accommodate them, the agency may include restrictive requirements only to the extent they are necessary to satisfy its legitimate needs. GAO reviews challenges to allegedly restrictive requirements to determine whether the restrictions are reasonably necessary to meet the agency’s needs. The adequacy of the agency’s justification is ascertained through examining whether the agency’s explanation is reasonable, that is, whether the explanation can withstand logical scrutiny.
GAO’s review of the record finds that there is no analysis or documentation supporting the agency’s justification for its standardization requirement. The agency has provided a statement from an information technology project manager, who generally asserts that standardizing the computers and monitors to a single manufacturer reduces costs and provides other benefits. However, the project manager does not identify any analyses or studies to support this; nor does the project manager provide any explanation or analyses that would show the extent to which these claimed benefits would be achieved by this restriction. GAO is unable to find that the agency’s asserted justification for the restriction is reasonable and therefore finds that the agency should review this requirement. The agency has also not provided any analyses or studies supporting its claimed need for Intel-based microprocessors.
Finally, GAO finds that the agency should also reconsider its requirement for third party reviews since the phrase “average or above in reliability” is unclear to the meaning of both “average or above” and “reliability,” as the meaning of these words vary depending upon the reviewer. The protest is sustained and GAO recommends that the agency review its requirements for a single manufacturer and Intel-based microprocessors to determine whether these reflect the agency’s legitimate needs.