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The solicitation prohibited the use of Section 889 covered telecommunications equipment. A certification submitted with the proposal to GSA indicated that the protester does use 889 covered equipment. The protester maintained it held a waiver from USAID, the contracting agency, that permitted the use of such equipment for a contract in Egypt. The protester also confirmed that it would not use covered equipment or services under a proposed OASIS+ award. GAO, however, found that a waiver from one agency could not be used in a separate procurement with a different agency.

QED Group LLC d/b/a Q2 Impact, GAO B-421775.4

  • Solicitation – The agency issued an RFP for the award of multiple indefinite-delivery, indefinite-quantity governmentwide acquisition contracts for a variety of services-based solutions, known as One Acquisition Solution for Integrated Services Plus (OASIS+). The solicitation prohibited contractors from providing the agency with “covered telecommunication equipment” — equipment or services produced by Huawei Technologies and other named companies addressed in NDAA FY 2019 (Section 889).
  • Disqualification – The agency disqualified the protester’s proposal, finding the protester had certified that it does use covered equipment purchased with federal funds.
  • Waiver – The protester argued disqualification was improper because it had obtained a NDAA FY 2019 waiver from USAID on the contract. GAO found that NDAA FY 2019 waivers existed on a “one-time basis” under FAR 4.2104(a), and there was nothing in the FAR that allowed a waiver from one agency to be applied in another procurement with a separate agency. Instead, the plain language of FAR 52.204-25 prohibits agencies from entering a contract with an entity that used the covered equipment.
  • Disparate Treatment – The protester also contended that other awardees do business in Egypt which is covered by the waiver and must have affirmatively represented themselves as entities using covered telecommunications equipment. If they did not, the agency failed to properly investigate the matter. GAO found that this protest did not include sufficient factual bases to establish a reasonable potential of merit. Thus, GAO concluded this argument was based on speculation and dismissed it.

— Case summary by Joshua Lim, Assistant Editor

Fortunately, Q2 Impact is pursuing this matter with the Court of Federal Claims. GSA’s interpretation of the 889 certification requirement may also disqualified other USAID contractors pursuing OASIS+ awards.

Read more of the details on the COFC case in the Washington Technology article here.