Report 2001-128 Summary - April 2002

Enterprise Licensing Agreement: The State Failed to Exercise Due Diligence When Contracting With Oracle, Potentially Costing Taxpayers Millions of Dollars

HIGHLIGHTS

On May 31, 2001, the State entered into a sixyear enterprise licensing agreement (ELA), a contract worth almost $95 million, to authorize up to 270,000 state employees to use Oracle database software and to provide maintenance support. Our audit of this acquisition revealed the following:

• By broadly licensing software, a buyer that has many users, such as the State, can achieve significant volume discounts and reduce its overall administrative costs.
  
  
• However, the State proceeded with this procurement even though a survey of departments disclosed limited demand for new Oracle products.
  
  
• In spite of such limited interest, the Department of Information Technology made no further efforts to assess the State's need for Oracle software.
  
  
• The decision to support the ELA was likely swayed by Logicon's projections that the State could save about $111 million.
  
  
• The departments of General Services, Information Technology, and Finance approved the ELA without validating Logicon's cost savings projections; unfortunately these projections proved to be significantly overstated.
  
  
• Logicon apparently stands to receive more than $28 million as a result of the ELA, a fact the State may not have been apprised of.
  
  
• Nearly 10 months after the ELA was approved, no state departments had acquired new licenses under the ELA, which may be due to the fact that General Services had not issued instructions to state departments on how to do so.
  
  
• By June 2002, when the Department of Finance expects to complete the method for charging the ELA's costs to state departments, the State will have accumulated more than $17 million in ELA costs and interest charges.
  
  
• General Services used an inexperienced negotiating team and limited the involvement of legal counsel in the ELA contract, and as a result, many contract terms and conditions necessary to protect the State are vague or missing altogether.
  
  
• Finally, our legal consultant has advised us that a court might conclude that the ELA contract with Oracle is not enforceable as a valid state contract because it may not fall within an exception to the State's competitive bidding requirements.

RESULTS IN BRIEF

On May 31, 2001, the State entered into a six-year enterprise licensing agreement (ELA), a contract worth almost $95 million, to authorize up to 270,000 state employees to use Oracle Enterprise Edition 8i database software (enterprise database licensure) and to provide maintenance support. By broadly licensing software, an entity comprised of many users can potentially achieve significant volume discounts and reduce its overall administrative costs. However, a preliminary survey by the Department of Information Technology (DOIT) of 127 state government departments two months earlier strongly suggested that relatively few state workers might need or want any new Oracle Corporation (Oracle) products. Although only 21 departments responded to this survey, DOIT made no further efforts to assess the State's need for Oracle software. The other 2 state departments normally charged with oversight of large information technology (IT) projects-the Department of General Services (General Services) and the Department of Finance (Finance)-also failed to assess the State's actual need for the contract.

Further, DOIT and Finance could have reviewed the ELA proposal¹ and perhaps saved the State from making a flawed decision, but neither did so, citing a lack of specific procedures and inadequate time. Also, General Services' unprepared negotiating team agreed to a contract that left the State unprotected against numerous risks. In its proposal, Logicon Inc. (Logicon), Oracle's reseller, presented data showing the ELA would save the State millions of dollars over the life of the contract.² General Services, DOIT, and Finance approved the ELA without taking the time to validate Logicon's data, which our review shows to be significantly overstated. Lacking an in-depth understanding of whether the ELA might fill a legitimate need for state departments, and without knowing the true costs and benefits of the contract, the State committed millions of taxpayer dollars to a questionable technology purchase.

In November 2001, five months after the ELA took effect, Finance sent out its own survey, this time asking all departments to identify their needs for the newly purchased enterprise database licensure. Preliminary results of this survey indicate that many of the State's largest departments need database software licenses for less than a fourth of their authorized positions. For example, the Department of Corrections has almost 24,000 custody staff whose jobs likely do not require them to have their own computer station or database software. Although the State's actual demand for the software license is uncertain, the contract could establish the perception that Oracle Enterprise Edition 8i database is the de facto standard throughout state departments in spite of a statewide policy that agencies should adopt the best technical solution for their particular needs. The sheer volume of the ELA purchase may create the perception among departments that the Oracle database is the standard software and their most cost-effective choice. Unfortunately, departments' perception of a de facto standard may reduce innovation and flexibility in state IT projects.

Besides not knowing the actual need for statewide enterprise database licensure, the State entered the ELA without any formal evaluation of the contract's technical or business advantages. The State had never evaluated an ELA proposal before and lacked specific procedures to do so. Nonetheless, DOIT and Finance routinely evaluate IT projects and possess the expertise needed to evaluate the ELA proposal-DOIT the need to license 270,000 users and Finance the proposal's cost projections. However, neither validated these aspects of the ELA proposal. To its credit, Finance's Technology Investment Review Unit (TIRU), which is responsible for reviewing IT proposals and ensuring IT expenditures represent a prudent investment of resources and meet state needs, raised concerns about the ELA proposal and recommended postponing it until the next year. However, its concerns and recommendation went unheeded. As a result, the State committed almost $95 million in taxpayers' money for software that could affect IT decisions across all departments without knowing if the ELA was an appropriate procurement of technology or if its costs and benefits were justified.

Furthermore, although it had been in effect for nearly 10 months, as of March 20, 2002, no state department had acquired new licenses under the ELA. This may be due to the fact that General Services had not issued instructions to state departments on how to do so. In addition, although Finance is working on a cost allocation model to charge state departments for licenses they acquire under the ELA, it is not yet complete. Until it is complete, state departments will not know the exact cost of acquiring licenses under the ELA. Furthermore, by June 2002, when Finance expects to complete the cost allocation model, the State will have accumulated more than $17 million in ELA costs and interest charges, and will likely have little benefit to show for it.

By broadly licensing software in an organization, an ELA has potential benefits for both buyer and seller: it can reduce a large consumer's administrative costs and give the seller a firm commitment to purchase in volume. However, General Services' negotiating team was inexperienced and unprepared, with no expertise in software contracts and no in-depth knowledge of Oracle's business and contracting practices. Moreover, General Services limited the involvement of its legal counsel in the ELA contract to a few hours of review just before it was signed, and in general, limits its legal counsel's role in all IT contracts. Therefore, many of the ELA contract terms and conditions necessary to protect the State's interests are vague or missing altogether. Also, the six-year term of the contract, with an option for four more years, deviates from the standard industry practice of limiting contracts of this nature to between three and five years because of the rapidly changing technology field. By entering into a long-term contract that lacks legal safeguards, the State faces considerable financial risk over many years. For example, the ELA gives the State no protection against risks such as Oracle's lowering prices, software upgrades not being included in the purchase price, and a declining need for the licenses. In short, the State had never before negotiated an ELA and let Oracle and its reseller, Logicon, use common vendor negotiating tactics to push through a largely one-sided contract.

The decision to support the ELA was likely swayed by Logicon's estimates that the State would save about $111 million over and above the contract's cost if it exercised its option for an added four years of maintenance. However, our review of Logicon's proposal and data indicates that rather than saving money by entering into the ELA, the State stands to spend almost $6 million more on Oracle database licenses and maintenance than it would without the contract if it exercises its four-year option, and almost $41 million more if it terminates the contract after its normal six-year term. Although Logicon was responsible for initiating the sales presentations that resulted in the ELA, none of the three departments thoroughly validated the data in Logicon's proposal, a small effort that might have saved the State millions of taxpayer dollars. Furthermore, it appears that Logicon stands to make more than $28 million as a result of the ELA, a fact that the State may not have been apprised of.

Our legal consultant has advised us that a court might conclude that the ELA contract with Oracle is not enforceable as a valid state contract because it may not fall within an exception to competitive bidding requirements, as claimed by General Services. Logicon's apparent undisclosed role, actions, and compensation raise additional questions about the validity of the ELA contract. However, a finding that the Oracle contract is unenforceable because it failed to comply with competitive bidding requirements would raise questions about the impact on the State's best interests. For example, our legal consultant cautioned that even if a court determined that the ELA contract is void, additional questions are raised by the financing provisions of the ELA contract, in which Logicon assigned a $52.3 million loan to Koch Financial Corporation (Koch Financial). Because Koch Financial apparently acted in good faith and the State accepted the database license and maintenance support on May 31, 2001, Koch Financial will likely assert that the State is obligated to repay the loan. If that position is correct, the State's recourse for recovering the $52.3 million may be to recover the money from Oracle and Logicon. Also, the State has agreed under the ELA contract that if the Legislature does not appropriate funds for the financing provisions or the State does not otherwise make payment and the ELA contract is terminated, the State will not replace the Oracle license with substantially similar database licenses for a period of one year from the termination date. Successful enforcement of this provision could effectively shut down many departments' operations. Further legal analysis is required to understand the impact of these provisions on the contract and to make a determination as to whether the contract is void or otherwise unenforceable.

¹ The ELA proposal as it is used here and throughout the report consists of the projected costs and savings amounts that Logicon Inc. provided to the State. The proposal includes Logicon's assumptions and was accompanied as of May 17, 2001, by past state purchase order data for Oracle products and support.
² Logicon Inc. recently changed its name to Northrop Grumman Information Technology.

RECOMMENDATIONS

Before pursuing future enterprise licensing agreements, the State should take the following actions:

• DOIT, Finance, and General Services should seek legislation establishing the authority to enter into an ELA that protects the State's interests and defines each department's respective role and responsibility in the ELA process.
  
  
• DOIT and Finance should develop policies and procedures on how to evaluate future ELAs. To be effective, one state department needs to take responsibility for developing and justifying the ELA proposal.
  
  
• Finance should complete its survey and develop a method to allocate the ELA's cost to state departments.
  
  
• General Services should ensure its negotiating team possesses all the types of expertise necessary to protect the State's interests.

To identify the legal measures to take to protect the State's interests, we recommend the following:

• General Services should further study the ELA contract's validity in light of the wide disparities we identified in Logicon's projections of costs and savings, and consult with the attorney general on how to protect the State's best interests.
  
  
• General Services should work closely with the attorney general in further analyzing the ELA contract; all amendments, including any and all documents pertaining to the side agreements between Oracle and Logicon; and the laws and policies relating to the ELA, including the potential legal issues that this audit has identified.

If it is determined that the ELA is enforceable, General Services should renegotiate its contract with Oracle to add and clarify the terms and conditions necessary to better protect the State.

The Legislature should consider requiring that all IT contracts above a specified dollar amount receive a legal review by General Services.

AGENCY COMMENTS

General Services, DOIT, and Finance agree with our recommendations. However, General Services disagrees with our conclusion that the ELA may not meet the requirements for a sole-source contract, and DOIT provides a list of changes it requested to an earlier draft of the report. All three departments also discuss some of the steps they are taking to improve and implement the ELA or to develop a process for future ELAs.

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