Protester Claimed that One Agency’s Waiver of a Prohibition on Telecommunications Equipment Applied to Another Agency’s Procurement. Why Didn’t GAO Think the Waiver Was Transferable?

The solicitation prohibited the use of certain covered telecommunications equipment. The protester maintained it held a waiver from a different agency that permitted the use of such equipment for the contract. 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.
• Disqualification – The agency disqualified the protester’s proposal, finding the protester had proposed covered equipment.
• Waiver – The protester argued disqualification was improper because it had obtained a NDAA FY 2019 waiver from USAID on another contract. It believed this waiver could be applied to the current procurement without requiring the agency to “reinvent the wheel.” GAO found that NDAA FY 2019 waivers existed on a “one-time basis” 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 the same geographic region 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.

The protester was represented by Ryan C. Bradel, Peter Tyson Marx, Nicholas L. Perry, and Brian S. Yu of Ward & Berry, PLLC. The agency was represented by Christopher Murphy of GSA. Hannah G. Barnes and Christina Sklarew of GAO participated in the preparation of the decision.

— Case summary by Joshua Lim, Assistant Editor