2020 U.S. Comp. Gen. LEXIS 252
Comptroller General of the United States
August 18, 2020
CGI Federal, Inc., of Fairfax, Virginia, and Ascendant Services, LLC, a small business of Leesburg, Virginia, protest the firms' exclusion from the Department of Commerce, U.S. Patent and Trademark Office's (PTO) business oriented software solutions (BOSS) procurement under request for information (RFI) No. ACQ-19-1870. Both protesters contend that the agency's review of the firms' responses to the RFI was unreasonable and an abuse of discretion. CGI argues that the agency's review of its response violated the terms of the RFI and the PTO's acquisition guidelines because it failed to consider past performance information [*2] of which it should have been aware. Ascendant argues that the agency's review of its response violated the PTO's acquisition guidelines generally, and further challenges the agency's failure to provide an explanation of its review process.
We dismiss the protests.
On August 19, 2019, the PTO issued the RFI under its unique Alternative Competition Method procurement authority. RFI at 2. The PTO's Alternative Competition Method is authorized by The Patent and Trademark Office Efficiency Act, 35 U.S.C. § 2(b)(4)(A), and implemented through section 6.1.1 of the Patent and Trademark Office Acquisition Guidelines (PTAG), 78 Fed. Reg. 61185, 61186-61187 (Oct. 3, 2013). The RFI provided that BOSS is the PTO's "requirement for software development and integration services for commercial off the shelf (COTS) products with [*3] customized software applications, database applications, and other solutions," and attached a draft solicitation for the BOSS requirement. RFI at 2-3. Under the forthcoming BOSS solicitation, the PTO intends to award multiple indefinite-delivery, indefinite-quantity (IDIQ) contracts of ten years in length with a combined estimated value of over $ 2 billion during the ten year performance period. CGI Req. for Dismissal at 2; Ascendant Req. for Dismissal at 2. Further, the PTO anticipates an award ratio of 3:2 for small to large businesses, representing a 60 percent small business set-aside for prime IDIQ awards. Id.; RFI at 3.
The RFI required interested vendors to submit a corporate profile and limited responses to 11 questions. RFI at 2; RFI--Vendor Response Template. The RFI did not ask for vendors to submit any pricing information. Id. The RFI informed vendors that "[b]ased on market research, including the responses to this RFI, the [PTO] will determine a pool of vendors that are deemed most likely to successfully meet the agency's needs, and will invite those companies to participate in a PTAG Alternative Competition." RFI at 2. The RFI included answers to several frequently asked questions. Id. at 3-5. Two of the [*4] answers reiterated that the PTO would "review vendor's RFI responses, and if applicable, additional market research" to select a pool of vendors "most likely to successfully meet the agency's requirements," and that this "selected pool of vendors [would] be invited to compete for the final solicitation." Id. at 3, 5. The answers also provided that "[s]ubmission of an RFI response [did] not guarantee a vendor's eligibility to compete for [the] BOSS" requirement. Id. at 5. In addition to the frequently asked questions answered directly in the RFI, the PTO allowed vendors to submit questions, the answers to which the agency incorporated into the RFI. See RFI--Q&A.Read The Full CaseNot a Lexis Advance subscriber? Try it out for free.
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2020 U.S. Comp. Gen. LEXIS 252 *
Matter of: CGI Federal, Inc.; Ascendant Services, LLC
vendors, protest, solicitation, procurement, bid, acquisition, down-select, forthcoming, guidelines, exempt