Tempus Nova Inc

B-412821 Jun 14, 2016 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Tempus Nova, Inc. (TN), of Denver, Colorado, protests the issuance of a delivery order to Softchoice Corporation, of Chicago, Illinois, under blanket purchase agreement (BPA) No. TIRNO-13-Z-00009, which previously was issued to Softchoice by the Department of the Treasury, Internal Revenue Service (IRS), under that firm's Federal Supply Schedule (FSS) contract. TN maintains that the delivery order is beyond the scope of Softchoice's underlying BPA and was improperly issued on a sole-source basis. We sustain the protest. We sustain the protest. View Decision DOCUMENT FOR PUBLIC RELEASE The decision issued on the date below was subject to a GAO Protective Order. This redacted version has been approved for public release. Decision Matter of:  Tempus Nova, Inc. File:  B-412821 Date:  June 14, 2016 Michael D. McGill, Esq., Thomas L. McGovern, III, Esq., and Danielle M. Bertie, Esq., Hogan Lovells US LLP, for the protester. Scott A. Freling, Esq., and John W. Sorrenti, Esq., Covington & Burling LLP, for Softchoice Corporation, an intervenor. Jonathan D. Tepper, Esq., and Holly Styles, Esq., Department of the Treasury, Internal Revenue Service, for the agency. Scott H. Riback, Esq., and Tania Calhoun, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest alleging that agency issued an improper, out-of-scope, sole-source delivery order against a previously-awarded Federal Supply Schedule blanket purchase agreement is sustained where record shows that the delivery order contemplates providing products that were not included in the underlying blanket purchase agreement. DECISION Tempus Nova, Inc. (TN), of Denver, Colorado, protests the issuance of a delivery order to Softchoice Corporation, of Chicago, Illinois, under blanket purchase agreement (BPA) No. TIRNO-13-Z-00009, which previously was issued to Softchoice by the Department of the Treasury, Internal Revenue Service (IRS), under that firm’s Federal Supply Schedule (FSS) contract.[1]  TN maintains that the delivery order is beyond the scope of Softchoice’s underlying BPA and was improperly issued on a sole-source basis. We sustain the protest. BACKGROUND In 2013, the IRS issued a BPA to Softchoice to acquire maintenance and “software assurance” for the agency’s existing inventory of Microsoft products and services for a base year and two 1-year options.[2]  Agency Report (AR) exh. D, BPA.  The BPA describes the scope of the acquisition as follows: IRS currently owns perpetual licenses for all Microsoft products outlined in the attached spreadsheet. IRS is requesting a pricing proposal for an Enterprise Agreement encompassing Maintenance and Software Assurance, where applicable, for the products outlined in the attached spreadsheet for one base year and two option years, as well as, pricing for each of the listed software products, for each of the 3 years, for additional licenses that may be purchased. Id. at 4.  The BPA includes a complete schedule of all of the Microsoft products owned by the IRS--listed by product name and quantity--at the time it was executed.  Id. at 10-13.  The BPA further describes the agency’s rights as follows: During the term of this agreement, IRS shall have the right to install on, use, or access from, for each user, the latest version of each product, outlined in the attached spreadsheet, that is or becomes commercially available during the term of the agreement.  IRS also retains the right to use any prior version of all products outlined. AR, exh. D, BPA, at 6.  In addition, the BPA provides that the agency reserves the right to receive any product upgrades, including version upgrades and replacement products, for all software purchased by the IRS.  Id. at 7.  The BPA also provides that, in the event that products owned by IRS become unsupported by Microsoft during the term of the BPA, IRS retained the right to convert its licenses to comparable, supported, products at no cost to the agency.  Id. In the most basic terms, the BPA contemplates the acquisition of software maintenance services that provide the agency either with the latest version of its currently-owned software products, or where those products are no longer supported by Microsoft, a comparable replacement product.  In effect, the IRS was seeking to keep its existing portfolio of software licenses up-to-date with the latest versions of Microsoft products.  On June 19, 2014, the IRS issued a delivery order against the BPA that is the subject of this protest.[3]  AR, exh. E, Delivery Order No.