Protest of EPA Acquisition of Multiprocessor Computer From IBM

A firm protested an Environmental Protection Agency (EPA) acquisition of an excess Government leased multiprocessor computer from the Department of Energy (DOE) after EPA determined that the excess leased computer represented the lowest cost alternative which would meet its requirements. The General Services Administration (GSA) generally has exclusive statutory authority to procure automatic data processing equipment (ADPE), and Federal agencies must request a delegation of procurement authority from GSA to purchase ADPE. GSA granted the authority to EPA and advised that the purchase of excess leased equipment is subject to applicable procurement laws and regulations which provide for maximum practicable competition. The regulations envision circumstances where a sole-source finding and determination will be documented to show that the equipment to be purchased represents the lowest overall cost to the Government. This determination must follow some testing of the market through the issuance of a solicitation or the publication of a synopsis in the Commerce Business Daily. GSA informed EPA that a lowest cost determination would suffice and that some form of market survey or test was required. GSA said the DOE procurement should be adequate for the market test. However, the DOE procurement was not adequate for that purpose, and EPA should not have relied on the advice of GSA in this regard. The DOE solicitation did not require a system equal in all respects to the system in question. The record clearly indicated that DOE was aware of this. The protester's offer was less expensive and slightly less powerful and was ultimately successful in the DOE procurement. EPA assumed the protester and other offerors could not offer less costly equipment that would meet its needs, but it did not in fact conduct or rely on any meaningful market survey. It could not properly document a lowest cost determination. EPA also justified the acquisition by stating that a competitive solicitation would have resulted in delays which would render the alternative too expensive. Since the protester's equipment was listed, it could have been selected without competitive solicitation but on the basis of a lowest cost analysis. The cost of operating the leased equipment was not considered in the procurement cost. The protest on this issue was sustained, but no corrective action was recommended.