The following is an installment in Crowell & Moring’s 2023 Bid Protest Sustain of the Month Series. All through 2023, Crowell’s Government Contracts Practice will keep you up to date with a summary of the most notable bid protest sustain decision each month. Below, Crowell Partner Cherie Owen discusses RELX Inc., B-421597.2, Nov. 17, 2023, in which GAO considered an agency’s issuance of a brand-name-or-equal task order.
In RELX Inc., the Air Force sought to purchase a software license on a lowest-price, technically acceptable (LPTA) basis under the Federal Supply Schedule (FSS) to enable its employees to use the software’s access and search capabilities relating to law enforcement, and legal and legislative content. The Air Force sought “brand-name-or-equal” software, stating that offerors could provide either a LexisNexis software license, or an equivalent that satisfied a list of salient characteristics. Two offerors – RELX (doing business as LexisNexis) and West – submitted quotations. The agency initially selected West as the successful LPTA offeror. LexisNexis protested and the agency took corrective action in which it reevaluated and again concluded that West submitted the successful LPTA quotation.
LexisNexis again protested, arguing that West’s software did not meet all of the salient characteristics of the solicitation, and also that West included “open market” items that were not available under its FSS contract. GAO agreed with both arguments. As an initial matter, GAO noted that when a brand name or equal solicitation lists salient characteristics, these characteristics are presumed to be material and essential to the government’s needs. As a result, quotations that fail to demonstrate compliance with the identified salient characteristics must be rejected as unacceptable. Here, the solicitation required that offerors provide a single platform with a singular login, and specifically stated that “[m]ultiple platforms, applications, or systems are not acceptable.” However, West’s product failed to meet this requirement. Although it included a “singular login,” West’s quotation stated that the single sign-on would provide access to “multiple Thomson Reuters applications” including one platform that provides law-enforcement-specific records searches, and a second platform used to conduct traditional legal and legislative searches. Because West’s quotation clearly evidenced that its product did not comply with a salient characteristic, GAO concluded that West’s quotation should not have been found to be technically acceptable.
GAO next turned to the allegation that West’s quotation offered open market items. In this regard, GAO noted that when agencies obtain their requirements using the FSS, they are confined to ordering products and services that are available from the contractors’ respective FSS contracts; they may not make award on the basis of a quotation that includes non-FSS items (i.e., open market items) when using the FSS. The Air Force acknowledged that West’s quotation included open market items, but claimed that the award was unobjectionable because LexisNexis’ quote also contained open market items. However, GAO concluded that two wrongs don’t make a right – rather than rendering West’s award unobjectionable, LexisNexis’ offer of open market items meant that both firms were ineligible for award.
In sustaining the protest, GAO noted that the Air Force could not simply reevaluate quotations because none of the quotations it had received were eligible for award. Therefore, the Air Force would need to terminate the task order issued to West, amend the solicitation, obtain and evaluate quotations, and make a new award. The RELX decision provides several important reminders for government contractors. First, if an agency issues a “brand name or equal” solicitation, companies should carefully review the identified salient characteristics to determine whether they can clearly meet each one. If not, consider whether the listed specifications might be unduly restrictive. Challenges to such specifications must be raised early in the process – generally prior to the quotation or proposal due date and time. Second, and relatedly, if the procurement is conducted under the FSS, companies should determine whether each and every item or service is available on their team’s FSS schedule. If not, the company should consider whether it can partner with another company whose FSS schedule includes the relevant goods/services, or whether to contact the agency (via the Q&A process or a protest) to seek modification of the requirements. As LexisNexis learned, even a “brand name” product can be technically unacceptable if all of the offerings are not available on the offeror’s FSS schedule.