Government Contracts RFQ Improperly Removed Requirement from 8(a) Program
Thursday, August 27, 2020

RFQ Improperly Removed Requirement from 8(a) Program

By Government Contracts Editorial Staff

A protest of the issuance of a request for quotations for software support was sustained because the RFQ improperly removed a requirement from the Small Business Administration’s 8(a) program. The RFQ, issued to small businesses under General Services Administration Schedule 70, Information Technology Professional Services, sought a vendor to maintain, operate, and manage PeopleSoft v9.x or later in a production environment using Scaled Agile Framework. Although the government had previously awarded a task order for Peoplesoft-related services to an 8(a) small business, the government decided against obtaining the SAF requirement through a follow-on task order because it viewed SAF as a new requirement. According to the protester, the SAF requirement was “clearly [a] follow-on” to the task order, not a new requirement, and the government improperly failed to obtain SBA’s permission before removing the requirement from the 8(a) program.

Not New Requirement. The Comptroller General explained that under FAR 19.815 and SBA 124.504(d), when a procurement is awarded as an 8(a) contract, the follow-on or renewable acquisition must remain in the 8(a) program unless SBA agrees to release it for non-8(a) competition. The requirement to remain in the program does not apply if the follow-on work is a “new requirement” (30 CGEN ¶114,643). Here, the requirements in the existing task order and the RFQ were “virtually identical.” Both required the contractor to “[m]aintain, operate, and manage PeopleSoft v9.x or later [], including any follow-on functional requirements and application support.” There was no merit to the government’s contention the task order was different because it required the use of “standard waterfall systems development life cycle.” The task order did not use the word “waterfall,” and an affidavit from the task order contractor indicated both the order and the RFQ contemplated use of SAF methodology. Finally, although SBA 124.504(c)(1)(ii)(C) states that a new requirement arises when a change results in a price adjustment of at least 25 percent, and the value of the RFQ was almost double that of the task order, the change in the requirement must have caused the price adjustment. In this case, the government did not contend, and the record did not establish, that the price adjustment was attributable to the introduction of SAF methodology. The Comptroller General recommended that the government reconsider whether the requirement for Peoplesoft support using SAF qualified as a new requirement. (Eminent IT, LLC, 35 CGEN ¶116,883)

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