Government Contracts Justifications for Only One Responsible Source Were Inadequate
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Tuesday, July 7, 2020

Justifications for Only One Responsible Source Were Inadequate

By Government Contracts Editorial Staff

The Court of Federal Claims set aside a sole-source award because none of the government’s justifications warranted application of the one responsible source exception under 41 USC 3304(a)(1). The justification and approval to make a sole-source award under §3304(a)(1) and FAR 6.302-1 for a gastrointestinal electronic medical record software system enumerated the inadequacies of the protester, which was the incumbent; stated that only the awardee had the capability to transfer data using a particular export tool; and concluded the awardee’s system would enable integration with its academic medical affiliates. A determination that a new contractor could perform better than the incumbent is insufficient to justify a sole-source award. The government contended its comparison of the protester’s and the awardee’s merits did not constitute “engaging in the evaluation of technical superiority that happens during competitive procurements.” However, the evidence indicated the “animating force” driving the government’s decision to seek a new GI EMR system was its preference for the awardee over the protester.

No Compelling Technical Justification. The government’s reliance on the awardee’s authorization to use the data export tool, which the government considered a requirement, was also problematic. The protester had imported historical data without the tool, and the government disregarded the lack of a tool to import the protester’s data into the awardee’s incompatible system. In addition, the exclusivity of the awardee’s access to the export tool was a factual premise for the government’s justification for abandoning standard competitive procedures, but the government filed a notice of newly discovered information that indicated at least one other potentially responsible source had access to the export tool and could satisfy the minimum need. Finally, the justification of integration with private healthcare partners was also inadequate. The government failed to explain why it would be preferable to retrain government medical professionals on a new system instead of cross-training visiting staff on the existing system, and a preference for efficiency was not a minimum need and did not justify departing from competitive procedures. (Utech Products v. U.S., et al., FedCl, 64 CCF ¶81,935)

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