The agency awarded a contract for upgrades to software the agency had been internally developing for 20 years. The protester objected to the award. The agency canceled the contract and moved to dismiss the protest as moot because there was no longer a procurement at issue. The protester argued the protest was not moot because the agency’s initial decision to develop software internally was procurement-related. The COFC did not find this argument compelling.
Advanced Simulation Technology, Inc. V. United States, COFC No. 23-2201C
- DoD Develops Software – Twenty years ago, DoD developed software for training of service members in radio communications. Since DoD developed the software, it continued to make internal upgrades to the program
- Protest – In 2023, DoD awarded a sole-source IDIQ contract for upgrades to the software. Another firm, Advanced Simulation, filed a COFC protest objecting to the sole-source award. In response, the agency canceled the contract and terminated orders issued under the contractor. The government then moved to dismiss Advanced Simulation’s protest as moot.
- Procurement-Related Decision – The government argued the protest should be dismissed because there was no procurement at issue. Advanced Simulation, however, argued that the government’s decision to develop the software internally and to not acquire the software from an external contractor was a “procurement-related decision,” which meant there was still a procurement at issue before the court.
- Internal Development of Software Is Not a Procurement – The court rejected Advanced Simulation’s argument. A procurement does not occur when the government chooses to not procure something and to develop something on its own. If a procurement occurred every time the government decided not to procure something, then the notion of a procurement would be meaningless. Indeed, the government had not issued a solicitation. There was no way for the court to review an administrative record for internal software development that had been ongoing for 20 years.
- Previous Contract – Advanced Simulation argued that the previous sole-source contract for software upgrades indicated that the government would eventually want to conduct a procurement. But the court found this was not enough to maintain the protest. Until the government solicited the upgrades, a protest would be based on future events and thus was not ripe.
- Outside Contractors – Advance Simulation contended that the agency was hiring outside contractors to help with the development of the software. The court, however, found this argument vague. The protester had not shown whether outside contractors had been retained at all, much less whether they had been retained through a procurement process.
The protester is represented by Hamish Hume of Boies Schiller & Flexner LLP. The government is represented by Brendan Jordan of the Department of Justice.
–Case summary by Craig LaChance, Editor in Chief
