B-218016, FEB 7, 1985, 85-1 CPD 164

B-218016: Feb 7, 1985

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SEI CONTENDS THAT TYING HARDWARE MAINTENANCE AND SOFTWARE MAINTENANCE TOGETHER IN ONE CONTRACT RESTRICTS COMPETITION BECAUSE A LICENSE FOR SOFTWARE SUPPORT IS REQUIRED IN ORDER TO PROVIDE SOFTWARE MAINTENANCE. WE WILL NOT CONSIDER THE PROTEST. THE PROTEST IS DISMISSED. /1/ IT APPEARS THAT SEI RECEIVED THE AWARD OF THE PRESENT CONTRACT BUT CANNOT PERFORM THE SOFTWARE MAINTENANCE SERVICES BECAUSE OF THE LICENSING REQUIREMENT. IT THEREFORE ANTICIPATES THAT THE CONTRACT WILL BE REAWARDED.

B-218016, FEB 7, 1985, 85-1 CPD 164

CONTRACTS - PROTESTS - MOOT, ACADEMIC, ETC. QUESTIONS DIGEST: UNDER ITS BID PROTEST REGULATIONS, GAO CONSIDERS THE PROPRIETY OF A CONTRACT AWARD OR PROPOSED CONTRACT AWARD AND NOT, AS HERE, GENERAL ALLEGATIONS THAT AN AGENCY MAY ACT IMPROPERLY WITH REGARD TO UNSPECIFIED FUTURE PROCUREMENTS.

SYSTEMS ENGINEERING INTERNATIONAL, INC.:

SYSTEMS ENGINEERING INTERNATIONAL, INC. (SEI) PROTESTS GENERALLY THE DEPARTMENT OF THE ARMY'S REQUIREMENT FOR THE PROVISION OF BOTH HARDWARE AND SOFTWARE MAINTENANCE IN AUTOMATED DATA PROCESSING CONTRACTS SUCH AS CONTRACT NO. DAAD05-85-M-D966, AND IN ANY FUTURE SOLICITATIONS FOR SIMILAR SERVICES. SEI CONTENDS THAT TYING HARDWARE MAINTENANCE AND SOFTWARE MAINTENANCE TOGETHER IN ONE CONTRACT RESTRICTS COMPETITION BECAUSE A LICENSE FOR SOFTWARE SUPPORT IS REQUIRED IN ORDER TO PROVIDE SOFTWARE MAINTENANCE. SEI ALLEGES THAT ONLY THE OWNER OF THE EQUIPMENT CAN PURCHASE SUCH A LICENSE, WHICH THE GOVERNMENT HAS NOT DONE HERE. DISMISS THE PROTEST.

SEI REQUESTS THAT EITHER THE GOVERNMENT PURCHASE THE SOFTWARE SUPPORT LICENSE OR SEPARATE THE SOFTWARE AND HARDWARE MAINTENANCE REQUIREMENTS INTO SEPARATE CONTRACTS IN FUTURE PROCUREMENTS OF THIS KIND. HOWEVER, SEI DOES NOT REQUEST ANY REMEDIAL ACTION WITH REGARD TO THE PRESENT CONTRACT AWARD. /1/

IN RESOLVING PROTESTS UNDER OUR BID PROTEST REGULATIONS, 49 FED.REG. 49417-49423 (1984) (TO BE CODIFIED AT 4 C.F.R. PART 21), OUR OFFICE CONSIDERS PROTESTS INVOLVING SPECIFIC PROCUREMENT ACTIONS ONLY, I.E., WHETHER A CONTRACT AWARD OR A PROPOSED CONTRACT AWARD COMPLIES WITH STATUTORY, REGULATORY, AND OTHER LEGAL REQUIREMENTS. METALLIZING COMPANY OF AMERICA, INC., B-214840, APR. 16, 1984, 84-1 CPD PARA. 421. SINCE SEI QUESTIONS THE PROPRIETY OF THE ARMY'S PROCUREMENT ACTIONS WITH RESPECT TO FUTURE SOLICITATIONS, WE WILL NOT CONSIDER THE PROTEST. SEE EQUIPMENT & SUPPLY SERVICE CO., B-215776, AUG. 30, 1984, 84-2 CPD PARA. 241.

THE PROTEST IS DISMISSED.

/1/ IT APPEARS THAT SEI RECEIVED THE AWARD OF THE PRESENT CONTRACT BUT CANNOT PERFORM THE SOFTWARE MAINTENANCE SERVICES BECAUSE OF THE LICENSING REQUIREMENT. IT THEREFORE ANTICIPATES THAT THE CONTRACT WILL BE REAWARDED.