Sole-Source Procurement Improper, but No Remedy for Protester

Although a pre-award protester demonstrated the government’s selection of a sole-source network security framework violated the Competition in Contracting Act, 10 USC 2304(c), and the Federal Acquisition Regulation, the Court of Federal Claims ruled “no viable remedy [was] at hand” because national security interests weighed against enjoining the procurement. The protester alleged the government’s decisions to reconfigure and strengthen Air Force base network security technology amounted to a sole-source selection without the requisite justification. The government was presented with five courses of action that varied in the extent to which they employed additional security software. The government did not choose the recommended solution of a combination of next-generation, full-packet capture software, and the protester’s software, which was rated the “[b]est value, “[m]ost cost effective,” and [l]owest security risk.” Instead, the government proceeded with a COA rated “[t]oo expensive” and predicted to be “[u]nable to meet target date.”

Not in Accord with CICA

The court determined the government’s selection effectively moved the networks’ security infrastructure to a sole-source security configuration without an open competition or the issuance of a direct solicitation for the government’s security needs. In addition, none of the exceptions to open competition applied. For example, the government was aware of other sources or combinations of sources for network security but expressed its preference for a sole-source plan even before the COA presentation. Also, the sole-source option was not the fastest COA and belied any possible assertion of compelling urgency. “Given that there were known, additional, responsible, multiple-source options available to the [government] at the time the key decision was made, its decision to use a sole-source security system without competition [did] not accord with CICA and [10 USC 2304].”

Obsolete Defenses

The court found the inappropriate procurement selection prejudiced the protester because it could have offered its products as part of a bundle or composite, and the protester would suffer irreparable economic harm because it was never provided an opportunity to prepare a bid and could not recover bid and proposal preparation costs. However, the balance of hardships and public interest weighed against injunctive relief because the national security interests at stake were “overpowering.” The protester did not controvert the government’s assertions that the classic firewall and intrusion-prevention systems currently in place “render[ed] [the] base network defenses obsolete and virtually blind to the new attack methods” of modern cyber enemies. ( McAfee, Inc. v. U.S., FedCl, 57 CCF ¶80,112)