Comdisco, Inc., B-277340, October 1, 1997

B-277340 Oct 01, 1997 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights Protest is sustained where agency is purchasing the right to acquire substantial quantities of hardware/software and provides no credible evidence that the limitation is satisfied. Comdisco asserts that the task orders for disaster recovery computer equipment and related services are outside the scope of the Troy Systems contract because they exceed the underlying contract's express limitation on the acquisition of computer hardware and software. BACKGROUND The contract which provides for the challenged task orders was awarded under request for proposals (RFP) No. Listed under the ISS area were. Software and related supplies] shall not exceed 25% of the value of the TO [task order]." [1] Troy Systems was awarded an ITOP contract for the ISS functional area in May 1996. View Decision Matter of: Comdisco, Inc. File: B-277340 Date: October 1, 1997 * Redacted Decision DIGEST Attorneys DECISION Comdisco, Inc. protests the Department of Transportation's (DOT) award of three task orders to Troy Systems, Inc. and its subcontractor, SunGard Recovery Services, Inc., under contract No. DTOS59-96-D-0411. Comdisco asserts that the task orders for disaster recovery computer equipment and related services are outside the scope of the Troy Systems contract because they exceed the underlying contract's express limitation on the acquisition of computer hardware and software. We sustain the protest. BACKGROUND The contract which provides for the challenged task orders was awarded under request for proposals (RFP) No. DTOS59-96-R-00005, generally referred to as the Information Technology Omnibus Procurement (ITOP). The ITOP solicitation contemplated the award of multiple indefinite delivery/indefinite quantity (ID/IQ) contracts under which task orders would be issued "to obtain the gamut of support resources related to Information Resource Management." DOT states that the value of the ID/IQ contracts "could potentially reach $1 billion over the seven year life of the contract." The ITOP RFP divided the tasks to be performed into three functional areas: information systems engineering (ISE); systems/facilities management and maintenance (SFM); and information system security support services (ISS). Under each of the functional areas, the RFP listed various tasks. Listed under the ISS area were, among other things, "Disaster Recover, Continuity of Operations, and Contingency Planning." Section C.1.5 of the ITOP RFP contained the following limitation: Integral to the services necessary in performing the preceding functional areas, acquisition of hardware/software on a leased, depreciated, or purchased basis may also be required of the Contractor. Under any of the three functional areas, a task order may be used to acquire hardware/software up to 25% of the value of the task order. Section H.22 of the ITOP RFP made clear that this language imposes a mandatory ceiling, stating: "As stated in Section C, paragraph 1.5, the value of [hardware, software and related supplies] shall not exceed 25% of the value of the TO [task order]." [1] Troy Systems was awarded an ITOP contract for the ISS functional area in May 1996. Thereafter, DOT awarded task order Nos. T970003 ("task order No. 3"), T970005 ("task order No. 5"), and T970006 ("task order No. 6") to Troy Systems and its subcontractor SunGard Recovery Services, Inc. [2] Each of the task orders was awarded at the request of a particular customer agency, [3] and each provides that in the event of a disaster, [4] Troy/Sungard will provide replacement computer equipment and related services to the customer agency. More specifically, the SunGard proposal states that, when an agency determines, in its sole discretion, that a disaster has occurred, [5] Troy/Sungard will make the specified replacement equipment available for the agency's exclusive use, [6] at either a contractor or government facility, for a period of up to 6 weeks. Each task order also requires Troy/SunGard to provide equipment for the customer agency to use during specified periods in which the agency will test its disaster plan. [7] In consideration, Troy/SunGard charges a lump-sum fee which is paid by the customer agency in monthly installments. During the first 30 days following declaration of a disaster, there is no additional daily charge. Thereafter, a daily fee may be assessed in addition to the monthly rate. DISCUSSION Following DOT's issuance of the task orders, Comdisco filed this protest, arguing that the task orders violate the express limitation in the ITOP solicitation regarding acquisition of hardware/software and, therefore, that Comdisco, which does not hold an ITOP contract, was improperly precluded from competing for the requirements.