TITLE: B-298627, eFedBudget Corporation, November 15, 2006
BNUMBER: B-298627
DATE: November 15, 2006
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B-298627, eFedBudget Corporation, November 15, 2006
Decision
Matter of: eFedBudget Corporation
File: B-298627
Date: November 15, 2006
John E. Cleckner for the protester.
James K. Kearney, Esq., and Holly Emrick Svetz, Esq., Womble Carlyle
Sandridge & Rice, LLC, for RGII Technologies, Inc., an intervenor.
Dennis J. Gallagher, Esq., Department of State, for the agency.
Kenneth Kilgour, Esq., and Christine S. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Agency reasonably concluded that protester is not an acceptable source
to perform a contract for maintenance and support of contracting agency's
software system, where the record shows that use of proprietary software
belonging to the incumbent contractor, and currently unavailable to any
other firm, is necessary for successful performance of the contract.
2. Protest of proposed sole-source award is sustained where the record
shows that the agency did not satisfy its obligation to engage in
reasonable advance planning and to promote competition.
DECISION
eFedBudget Corporation protests the proposed award of a contract on a
sole-source basis to RGII Technologies, Inc. pursuant to presolicitation
notice No. B-P-06, issued by the Department of State (DOS) for continued
implementation, maintenance, enhancement, and support for DOS's worldwide
budget and planning software systems. The protester asserts that the
agency's decision to procure the software services on a sole-source basis
was improper. Specifically, the protester argues that the required
justification and approval (J&A) was deficient; that the agency
unreasonably refused to consider the protester's approach of developing a
non-proprietary software system; and that, in any event, the need for the
sole-source procurement arose from the agency's lack of advance planning.
We sustain the protest.
BACKGROUND
Under contract with DOS, beginning in 1997, RGII, with the protester as a
subcontractor,[1] developed the central resource management system of the
agency's Bureau of Resource Management, including the allotment control
system, the budget control system, and the budget resource management
system. For the past 9 years, the agency has relied on the services of
RGII exclusively to maintain and enhance that budget and planning
software. In 2000, the agency and RGII entered into a licensing agreement
limiting the government's rights in the software that operates the budget
and planning systems; [2] the original software was then copyrighted by
RGII under the name "Monument."
The scope of the license, however, is broader than simply the Monument
software. Under the license agreement, "Licensed Product" means:
any product made by, made for, used, sold, offered for sale, leased,
offered for lease by Licensor that includes, combines, incorporates
and/or implements the Software, and any modification or derivation
thereof, with software and/or hardware provided by Licensor for purposes
of adding to and/or increasing the value, functionality or utility of
the Software.
AR, Tab 1, License Agreement, at 2.
The agreement provides DOS rights to use the licensed product only within
the agency, precludes the combination of the licensed software with other
software for the purpose of implementing the software, and precludes the
agency from disclosing the licensed software to other contractors or to
other government agencies. At the agreement's inception, the agency's
expectation was that the agency "would benefit from receipt without
additional cost of improvements that would be made to RGII's software," an
expectation that has been "disappointed." Agency's Response to GAO
Questions, Oct. 4, 2006, at 3. Either party may terminate the agreement
with at least 90 days prior written notice; upon termination, the agency
ceases to have any rights in the software. The licensing agreement
continues in place, with one modification.[3]
The agency published a presolicitation notice stating that the proposed
sole-source award to RGII was for a "follow-on contract for continued
implementation, maintenance, enhancement, and support for the [agency's]
worldwide budget and planning systems" that are based on proprietary
software packages owned by RGII, and that the contract period would be for
a base year plus four 1-year options. The notice stated that the
contractor "will be required to maintain and support legacy core systems
and interfaces and to provide the services necessary to develop
improvements which enhance the functionality and efficiency of the
systems." AR, Tab 4, Modification of Presolicitation Notice, at 1.
Although the estimated value of the services in the presolicitation notice
was $19 million, the agency states that, currently, the estimated value is
approximately $10 million, with the work now expected to focus on
maintaining the existing software, with little emphasis on developing
enhancements.
In support of the proposed award to RGII, the agency drafted a J&A citing
as authority to proceed on a sole-source basis 41 U.S.C. sect. 253(c)(1)
(2000), which states that an agency may use noncompetitive procedures only
when the property or services needed by the agency "are available from
only one responsible source and no other type of property or service" will
satisfy the agency's needs. The J&A states that "[w]ithout seeking a
follow-on contract with its current software vendor, the [agency] would
experience an immediate and substantial time delay or actually be unable
to fulfill its requirements to adequately meet agency budgeting and
financial responsibilities," and lists several attributes of the incumbent
that "make it a unique source for these services." AR, Tab 3, J&A, at 1,
2.
The J&A also describes the burden on the agency of adopting any other
approach. Without continued support from the incumbent, according to the
J&A, the agency "would need to redesign its budget and planning systems to
work with another software product, redesign its interfaces and duplicate
the requirements analysis, design, and development stages of
implementation to accommodate a new software package to perform the
business functions" of the current, proprietary software. Id. at 3. In
this regard, at the hearing that our Office convened to consider the
issues raised in this protest, the agency's program office representative
indicated that the agency had considered the purchase of a replacement
software system but that none was available as an off-the-shelf product.
The program office representative asserted that the time commitment
necessary for agency staff to properly determine the requirements for a
new system--the first step in the process--would be a significant burden,
even if the agency had the funds to procure the development of such a
replacement system.
Although the J&A states that "[l]icensing restrictions dictate that only
RGII Technologies can do this work," id. at 2, it identifies no actions
the agency has considered taking to remove or overcome any barriers to
future competition resulting from the restrictive license, such as
purchasing additional, broader license rights. The J&A notes only that
RGII is "assessing the ability" to license other vendors to operate its
software, and that the agency "will consider other application,
maintenance, and support options based on the degree of success RGII
achieves in these endeavors." Id. at 4.
RGII had been providing support on a labor hours basis under a DOS task
order that was set to expire October 31, 2006, but has been extended for 3
months. The agency expects to complete the negotiation and award of a new
contract with RGII before the expiration of that extension. The protester
first filed an agency-level protest challenging the agency's plan to award
the contract on a sole-source basis. After that protest was denied by the
agency, this protest followed.
DISCUSSION
Although the overriding mandate of the Competition in Contracting Act of
1984 (CICA) is for full and open competition in government procurements
obtained through the use of competitive procedures, 41 U.S.C. sect.
253(a)(1)(A), CICA permits noncompetitive acquisitions in certain
circumstances, such as when the services needed are available from only
one responsible source. 41 U.S.C. sect. 253(c)(1). When an agency uses
noncompetitive procedures under section 253(c)(1), it is required to
execute a written J&A with sufficient facts and rationale to support the
use of the cited authority. 41 U.S.C. sect. 253(f)(1)(A), (B); FAR
sections 6.302-1(d)(1), 6.303, 6.304. Our review of an agency's decision
to conduct a sole-source procurement focuses on the adequacy of the
rationale and conclusions set forth in the J&A. As a result, an agency's
decision in this regard will not be questioned by our Office so long as
the J&A sets forth reasonable justifications for the agency's actions.
Lockheed Martin Sys. Integration--Owego, B-287190.2, B-287190.3, May 25,
2001, 2001 CPD para. 110 at 10. Moreover, an agency has broad discretion
to determine its needs and the method for accommodating those needs.
Digital Controls Corp., B-255041.2, Mar. 28, 1994, 94-1 CPD para. 219 at
12. Use of noncompetitive procedures is not justified, however, where the
agency created the need for the sole-source award through a lack of
advance planning. 41 U.S.C. sect. 253(f)(5)(A).
The agency asserts that, because the licensing agreement restricts access
to the software source code, its conclusion that the protester is not an
acceptable source was reasonable. The protester argues, first, that the
agency improperly refused to consider the protester's alternative
proposal--that the agency replace the proprietary software system with a
non-proprietary system--and, second, that the protester is able to perform
the contract without holding a license to the proprietary software.
Our review of the record indicates that the agency reasonably chose not to
accept the protester's proposed alternative. The protester's proposal
presupposes a transition period during which the incumbent, RGII, would
operate the existing systems while the protester develops non-proprietary
software systems to replace them. Protester's Response to AR, Sept. 26,
2006, encl. 2, at 10. An agency may restrict a procurement to a single
contractor to ensure that one firm is responsible for a technical system
so that the government is relieved of the need to analyze the source of
technical problems and to avoid "finger pointing" between contractors, see
Tucson Mobilephone, Inc., B-256802, July 27, 1994, 94-2 CPD para. 45 at 3,
or to ensure the technical integrity and performance of a computer system.
MASSTOR Sys. Corp., B-211240, Dec. 27, 1983, 84-1 CPD para. 23 at 3. Here,
under the protester's alternative proposal, two firms who have an
admittedly contentious relationship would share responsibility for the
successful functioning of mission-critical software. Under these
circumstances, we think that the agency properly considered the potential
pitfalls in the protester's alternative proposal and reasonably decided
that this approach would not meet its needs.
The protester next asserts that, even if the agency properly rejected its
proposal to develop a replacement system, it can perform the requirements
of the proposed contract without holding rights under the license, and
without violating the license. The agency and RGII both challenge that
assertion. As explained below, we conclude that the protester has failed
to show that the proprietary software is unnecessary to satisfactory
performance of the contract here. See Federal Computer Int'l Corp.,
B-251132, Feb. 24, 1993, 93-1 CPD para. 175 at 4; Hydra Rig Cryogenics,
Inc., B-234029, May 11, 1989, 89-1 CPD para. 442 at 4.
One of the agency's overriding concerns with the implementation of the
protester's proposal to perform the contract without a license is the
potential disruption to its performance of mission-critical tasks posed by
the risk of litigation between the protester and RGII. Besides disagreeing
over whether the extraction of DOS data necessary to perform as the
protester proposes would violate the license agreement, RGII and the
protester dispute at least three fundamental issues related to the scope
of the license.[4] We find it reasonable for the agency to reject an
alternative approach to meeting its needs that carries with it the serious
possibility of litigation between two contractors. See Tucson Mobilephone,
Inc., supra.
The protester points to the successful development and launch of the
Executive Dashboard (ED) software as proof that enhancements to the
existing system can be created without access to RGII's proprietary source
code.[5] The agency challenges that assertion on two grounds. The agency
argues that the ED is a minor piece of software that merely displays data
and is not required to interface with Monument, while at least some
portion of the contract performance here would require creating software
with such an interface. In addition, before the contractor could begin
development of the ED software, a separate database containing the
necessary DOS raw data had to be created by the agency's own IT
personnel,[6] since extraction of data from the existing system by any
unlicensed party would violate the license. The agency explains that a
similar effort, and the corresponding burden on the agency's staff
resources, would be required here, only this time on a much larger scale.
In response, the protester states only that it "believes" that the
extraction of data could be performed without violating the license. Video
Hearing Transcript (VHT), Oct. 13, 2006, at 9:49.
Further, even if the launch of ED supports the protester's position--and
neither the agency nor the intervenor concedes that it does--the scope of
work of the contract at issue here has shifted from creating virtually
stand-alone enhancements for the software to maintaining and supporting
it. The record shows that maintenance and support of the software systems
would require not only that the protester extract data from the system,
but restore and add data to the system, as well. For example, when the
data is extracted from the current system for reuse in a program such as
ED, the contractor constructs new fields and arranges the data in a manner
suitable to that new program. In this case, however, if a contractor
working without a license were required to add a new employee as part of
its support responsibilities--that is, to add to and not extract data from
the existing systems--that contractor will not know precisely into which
existing fields the data pertaining to that individual should be added or
how the existing fields are structured. VHT, supra, at 10:02-10:04.
The protester asserts that through a quick and fairly simple system of
trial and error, it will be able to make additions to the database. The
agency argues that such modifications to the database happen repeatedly
throughout the day, every day, and are sometimes very complex. The agency
maintains that delays will inevitably result from a contractor who is
learning data field locations and structure by trial and error and that
those unknown delays are a burden that the agency may reasonably choose to
avoid. We agree. The protester itself estimates that, in the instances
where issues with the software require the contractor to write new
programs, the new programs could take as little as a day or as long as 3
weeks to write. The protester's own estimation is that operating without
access to the proprietary software would increase the time necessary to
write programs to generate needed reports by 10 to 15 percent, VHT, supra,
at 9:44, or, in some instances, more than 2 days.
We conclude that the protester has not met its burden of demonstrating
that the contract could be performed without access to the source code and
without violating the license agreement. In fact, the record demonstrates
the need for any contractor other than RGII to have access to the
proprietary software, by means of a license from RGII, to adequately
perform the full scope of work. An agency may properly take into account
the existence of software licenses when determining whether only one
responsible source exists. FAR sect. 6.302-1(b)(2); see AAI ACL Techs.,
Inc., B-258679.4, Nov. 28, 1995, 95-2 CPD para. 243 at 6; Marconi
Dynamics, Inc., B-252318, June 21, 1993, 93-1 CPD para. 475 at 5. The
protester does not have license rights to the existing system, and we thus
find reasonable the agency's determination that eFedBudget was not an
acceptable alternative source. MFVega & Assocs., LLC, B-291605.3, Mar. 25,
2003, 2003 CPD para. 65 at 4. As explained below, however, we also
conclude that the agency has failed to satisfy its statutory obligation to
engage in reasonable advance planning before proceeding with a sole-source
award to RGII.
Under CICA, 41 U.S.C. sect. 253(a)(1)(A), contracting officers have a duty
to promote and provide for competition and to provide the most
advantageous contract for the government. In their role of promoting and
providing for competition, contracting officials must act affirmatively to
obtain and safeguard competition; they cannot take a passive approach and
remain in a noncompetitive position where they could reasonably take steps
to enhance competition. VSE Corp., Johnson Controls World Servs., Inc.,
B-290452.3 et al., May 23, 2005, 2005 CPD para. 103 at 8; HEROS, Inc.,
B-292043, June 9, 2003, 2003 CPD para. 111 at 7; National Aerospace Group,
Inc., B-282843, Aug. 30, 1999, 99-2 CPD para. 43 at 8. See also S. Rep.
No. 98-50, at 18 (1984), reprinted in 1984 U.S.C.C.A.N. 2174, 2191
(stating that CICA requires agencies to "make an affirmative effort to
obtain effective competition").
CICA further provides that under no circumstance may noncompetitive
procedures be used due to a lack of advance planning by contracting
officials. 41 U.S.C. sect. 253(f)(5)(A); Signals & Sys., Inc., B-288107,
Sept. 21, 2001, 2001 CPD para. 168 at 9. Although the requirement for
advance planning is not a requirement that such planning be successful or
error-free, see Abbott Prods., Inc., B-231131, Aug. 8, 1988, 88-2 CPD
para. 119, at 8, the advance planning must be reasonable. Signals & Sys.,
Inc., supra, at 13. Here, we conclude that the agency has failed to comply
with the CICA mandate for reasonable advance planning.
With regard to the feasibility of alternatives to a sole-source award, the
agency principally focuses on the difficulties associated with either
acquiring a new software system, or having another firm perform the
required services without license rights to the RGII software. The agency
also asserts that its advance planning efforts have been reasonable in
that it has taken steps to avoid expansion of its reliance on RGII. In
this regard, the agency notes, for example, that it has been considering
using a program developed by another agency office, the Bureau of European
Affairs, to meet its needs here, instead of contracting with RGII for the
development of additional proprietary software. Agency's Response to GAO
Questions, supra, at 4.
While, as discussed above, it is reasonable to conclude that, given the
restrictive nature of the agency's current licensing agreement with RGII,
only RGII can now meet its needs, the agency's arguments simply do not
address the issue of whether the agency's acquisition planning--in the
face of those restrictions--was reasonable, given the requirement that the
agency make an affirmative effort to obtain competition. The agency has
produced no record of any steps that it has taken to end its reliance on
the services of the incumbent to maintain the existing software systems;
in fact, this latest proposed sole-source award has a potential term of 5
years. It is possible, for example, that the agency could purchase
additional rights to the proprietary software in order to promote
competition, see Environmental Tectonics Corp., B-248611, Sept. 8, 1992,
92-2 CPD para. 160 at 5, rights that the government relinquished nearly 6
years ago. In this regard, the protester asserts that in 2004 RGII offered
the agency a source code license to multiple copies of Monument for less
than $1.2 million, and that at the time RGII stated that the value of
Monument was less than $1 million. Protest, Tab E, Letter from Protester
to Agency, Aug. 7, 2006, at 2. Further, the agency acknowledges that the
"value of the software may in fact now be quite limited." Agency's
Response to GAO Questions, supra, at 3.
Under the circumstances here--where the agency ceded substantial rights in
the software created by RGII under the development contract, and where
there is no indication that the agency has explored the possibility of
acquiring additional rights from RGII--we think that, to satisfy its
obligation to engage in reasonable advance planning and to promote
competition, the agency was required to consider whether the costs
associated with a purchase of additional license rights, or some other
alternative, outweigh the anticipated benefits of competition. See HEROS,
Inc., supra, at 7, 10.
RECOMMENDATION
Consistent with our discussion above, we recommend that the agency conduct
a documented cost/benefit analysis reflecting the costs associated with
obtaining competition, either through purchasing additional rights to the
proprietary software or some other means, and the anticipated benefits. If
the cost/benefit analysis reveals a practicable means to obtain
competition, we recommend that the agency proceed with a competitive
procurement.
We also recommend that the protester be reimbursed for the expenses it
incurred in filing and pursuing its protest. Bid Protest Regulations, 4
C.F.R. sect. 21.8(d)(1) (2006). In accordance with section 21.8(f)(1) of
our Regulations, eFedBudget's certified claim for such costs, detailing
the time expended and the costs incurred, must be submitted directly to
the agency within 60 days after receipt of this decision.
The protest is sustained.
Gary L. Kepplinger
General Counsel
------------------------
[1] The protester, whose principals had left RGII by the end of 2004 under
less than amicable circumstances, asserts that its principals wrote more
than 50 percent of the code implemented at DOS for this system. Protest
at 7.
[2] The parties recognized that the government was relinquishing the broad
rights it otherwise would have had in the software, in exchange for
receiving full use of any enhancements and modifications to the software
developed in the future by RGII. Agency Report (AR), Tab 1, Contract
Modification No. 6, at 1-2; see also Federal Acquisition Regulation (FAR)
sections 27.404(f)(iv), 52.227-14(c)(1).
[3] In 2004, prior to having its own personnel perform the task of
extracting DOS data from the software system for use in developing another
software program called the "Executive Dashboard," discussed further
below, the agency entered into a memorandum of understanding with RGII
that modified the license agreement. That memorandum specifically granted
the agency the "right to receive and use the Source Code solely to allow
its direct-hire personnel to construct a staging database that extracts
and separates State Department data from RGII software for use in a
separate executive reporting application." AR, Tab 2, Memorandum of
Understanding, at 1.
[4] First, the protester maintains that the license does not prohibit
third party "use" of the proprietary software, only DOS "disclosure" of
the same. Second, the protester and RGII disagree on the extent to which
the protester may use its staff's knowledge of the software, gained
through their prior employment relationship with RGII, in performing the
contract. Third, the protester asserts that RGII has waived its right to
assert that certain information is proprietary because RGII has placed it
in the public domain, and that therefore the protester may rightfully use
that information.
[5] The contract for the development of the ED was awarded to Booz Allen
Hamilton; the protester served as a subcontractor.
[6] Before the agency could begin constructing the database, the agency
and RGII had to resolve licensing issues surrounding access to that data.
See note 3, supra.