Scenario#1 Gloria: Well, I think that covers all the weaknesses and deficiencies we found in Cooper's contractor logistics support proposal. We're really looking forward to seeing your final offer on this requirement. Cliff: Well, I am certain Cooper will offer the best value to the government. Our approach to the B-2052 ABC program has got to be superior to our competitors, and I'm pretty certain we've got the lowest cost as well. Gloria: Now, come on...You know we can't discuss the technical/cost proposals of the competitors. That information is protected by the Procurement Integrity Act. Still, I know you guys at Cooper are offering a great ABC approach, it complements your B-2052 nicely. If I were you, I would feel pretty confident. Cliff: Well, I appreciate your candor, teammate (nudge, nudge, wink, wink). I'm really glad that the government has changed the way it works with contractors. After all, we really are part of the national defense team, and I am sincere when I say that. Gloria: Well, it is a more productive relationship. Cliff: You know, Gloria, we really are teammates and this new approach for the B-2052 is going to do a lot for national defense. After the contract is awarded...assuming we get the contract, it's going to be critical that we put the right person in charge of the project management of the ABC program. We are going to need somebody who knows how to work within the government, we are going to need somebody who has contacts within the agencies. We're going to need somebody with qualities like...well like you. Gloria: Oh, you flatter me. Cliff: Not at all. And I am serious. It's important to the success of the B-2052 program that we get the right person. It is not only important to Cooper, but it's also important to the team. Gloria: Well, I think we both know it is a bit premature to be talking about something like this so let's just table the discussion until after the contract is awarded. We both want it perfectly clear that no lines have been crossed. OK. Cliff: You bet. We want to handle this strictly by the numbers. Gloria: So, when is your flight this afternoon...

1) Is this a problem for Gloria? Why or why not? 2) Should she perform some sort of action based on this conversation? 3) Has Cliff broken any laws? If yes, what laws or which laws? If no, why?

Scenario#2 -

DECISION Shamrock, Inc., of Virginia Beach, Virginia, and RedWhiteBlue America, Inc., of Reston, Virginia, protest the terms of request for proposals (RFP) No. 2019-LOC-B0125, issued by the Library of Congress (LOC) to acquire cloud computing services.

BACKGROUND The RFP contemplates the award, on best-value tradeoff basis, of a single, fixed-price, indefinite-delivery, indefinite-quantity (IDIQ) contract to provide the LOC cloud computing products and services and online marketplace for a 5-year period of performance. The anticipated maximum value is anticipated to be $150M.

Cloud Services The RFP identifies the name-brand products of three cloud services providers, Amazon Web Services, Google Cloud Platform and Microsoft Azure, and requires offerors to provide pricing for an enumerated list of 13 products or services available from these three firms. It also requires vendors to implement an online marketplace. In addition (and as amended) the RFP provides for the possibility of offering the cloud services of firms not specifically identified in the RFP and referred to only generically as "other" services (including marketplace services, professional services, training services, and support services). The RFP instructions expressly provide as follows: "The Library anticipates making a single award to the vendor who can provide all three cloud services. Vendors are encouraged to enter into teaming agreements if unable to provide all three cloud services." The RFP instructions also state that offerors are required to provide a technical narrative describing how they will meet the requirements of the solicitation's statement of work, and explicitly encourages offerors to propose a solution that incorporates the "marketplaces" of the three identified vendors. The RFP does not include any specific instructions relating to proposing cloud services of "other" vendors.

Online Marketplaces The RFP requires offerors to provide what is known as an online marketplace for third-party software applications. These marketplaces provide a mechanism for the agency to purchase pre-selected, third-party software products from the cloud service provider including pre-negotiated terms and conditions of the sale; evaluating the products being offered; determining whether the prices offered are fair and reasonable; determining whether the firms providing the products are responsible and determining whether the third-party vendors have improper conflicts of interest.

The RFP includes three separate provisions that comprise the statement of work. First, the RFP document itself includes a section "C" which is captioned "Section C Statement of Work (SOW)." This portion of the RFP includes an "overview/background" section that provides a list of the specific services being solicited from the named vendors (for example, the Amazon services being solicited), as well as a list of "other" cloud service providers' services being solicited; a statement of the scope of the contemplated services; a list of contractor requirements, etc.

Second, the RFP includes an attachment which is an Amazon-specific statement of work detailing "migration readiness and planning" consulting and advisory services to be performed--presumably directly by Amazon or an authorized Amazon reseller--once award has been made.

Third, the RFP includes an attachment which is a Google-specific statement of work describing services to be performed in connection with the establishment of a "Google cloud professional services project charter," also described as a "cloud foundation engagement" --once again, these are services that, presumably, will be provided by Google or an authorized Google reseller after contract award.

In addition, the RFP includes a document that is an enumerated list of 68 required "minimum capabilities" that also identifies 15 additional "desirable features."

Finally, in addition to these RFP documents, the agency published three lists of offeror questions and answers relating to the agency's requirements.

The protesters raise a number of challenges to the terms of the RFP.

Discussion:

1. What are those challenges the protesters raised? What is the basis this RFP could be protested?

2. Should the protest be granted or overturned? Why?

3. Are the terms of the solicitation unduly restrictive?

4. Are the terms of the solicitation inconsistent with regulatory requirements? If yes, what are those?

5. What additional information, if you had it, would you have liked to have known?

Scenario #3

DECISION Magnum Corporation, Inc. (Magnum), an 8a firm of Sioux Falls, South Dakota protests the cancellation of an award 2010-AFAC-D1797, issued by the United States Air Force (Air Force) to acquire a computer system.

BACKGROUND This nation's early warning system against missile or air attacks is vital to its defense. The Air Force concluded that the computer at the center of this system might be vulnerable to a data overload. Therefore, the Air Force Computer Acquisition Center (AFCAC) rushed to procure a computer system to relieve the burden. Plaintiff, Magnum, received a sole source opportunity to bid on the project.

In November 2010, the Air Force and MAGNUM reached an agreement on all procurement terms. The time sensitivity of the project required MAGNUM to begin performance immediately. The Air Force issued a formal contract document memorializing the agreement. MAGNUM executed the document. The Air Force received the document for signature but did not sign. In the interim, Air Force policy had changed. Based on a new evaluation, the Air Force determined it did not need the new computers. The Air Force cancelled the procurement agreement.

MAGNUM sought reimbursement in the United States Claims Court, for work it performed before execution of the formal contract, including any and all expenses, and to hold the Air Force to enforce the $13M contract.

In November 2010, the parties negotiated the contract over four days. On the last day of negotiations, all the negotiators, including the contracting officer and MAGNUM's lead negotiator, Mr. Danko, shook hands around the table. Captain Mather of the Air Force Team characterized the handshaking as an indication of completion of the deal:

The Court: Why did you have handshakes? Captain Mather: It signified the completion of the deal. The Court: What deal? Captain Mather: The agreement on price, terms, and conditions.

As the handshaking proceeded, the Vice President of Contracts at Magnum, Ms. Banks, announced to the group that she would now call their vendor Data General to confirm plaintiff's hardware order. The contracting officer and the rest of the Air Force delegation was present and heard her announcement. She left the room and made the phone call. Both parties corroborated this information. Data General thus received confirmation of plaintiff's computer order.

The Air Force agreed to draft the formal language of the agreement. At that point, the Air Force expected final contract approval in December of 2010.

A month later, in December, Data General requested from plaintiff additional assurance of the contract. The Air Force still had the contract document under review. Magnum called the Air Force and requested a letter to reassure Data General of the negotiated agreements. Air Force told Magnum : "[W]e could send them some type of letter, that we were going through the reviews, but we couldn't bind the Government at that point in time____"

On December 19, 2010, Captain Mather wrote a letter to plaintiff in response to this request. The first three sentences of the letter recount the completion of the negotiations. The fourth sentence stated that the Air Force "anticipate[d] contract award in mid-January 2011 pending availability of funds and required review and manual approvals." The letter stated further: "This memo is provided as a 'status' report only and does not commit the Government to a contract award."

On January 12, 2011, the Air Force delivered to plaintiff a draft document containing the agreement reached November 18, 2010. This document stated that the contract must receive approval from the Secretary of the Air Force or his designate. MAGNUM Vice President William Slade signed the document on January 25, 2011. Plaintiff sent the original of this document to the Air Force for signing. The contract document remained, unsigned, in the possession of the Government.

In January 2010, Air Force policy began to shift.

MAGNUM held its next technical exchange meetings on February 23 and 24 with Air Force personnel. The AFCAC contracting officer learned of these meetings. Knowing now of the pending reevaluation, Captain Mather sent a letter to MAGNUM on February 28, 2011. This letter stated: "[Award of the contract has been delayed pending resolution of user project approval." Further, the contracting officer told MAGNUM: The interchange discussions are not authorized as the subject contract has not been awarded.

On April 20, 2011, Air Force personnel informed plaintiff by telephone of the cancellation. On April 24, the Air Force wrote to MAGNUM: After careful consideration, the Air Force determined that the requirement no longer exists, and the acquisition should be cancelled. We regret that the decision to cancel was made so late in the acquisition cycle, however, the information concerning the "future" programs was not known in November 2010. Once the information did become available, we had to accomplish an entire requirement analysis. This analysis led to the determination that the requirement no longer exists.

DISCUSSION:

1. Should this protest by Magnum be granted or denied in whole or in part? Why?

2. What arguments could Magnum make for relief?

3. What arguments could the Air Force make in rebuttal?

4. Should the theory of equitable estoppel play a role?

5. What additional information, if you had it, would you have liked to have known?