GAO overturns NASA award

The General Accounting Office has ordered NASA to reconsider the January award of a $143 million contract to DynCorp after a subsidiary of Milwaukee-based Johnson Controls Inc. protested the choice, claiming the agency's "best value" determination was flawed.GAO found NASA did not sufficiently justify its decision either in the source selection statement made after the award or in an addendum filed in response to the protest.The ruling enforces the obligation of a source selection authority to review the evaluation results and conduct a comparative assessment of proposals, said Paul Khoury, a partner with the law firm Wiley Rein & Fielding LLP in Washington."What it means is, in a case when evaluators have spent significant time identifying differences [between proposals] in detail, the source selection authority cannot make a cursory review and gloss over those differences," he said.The contested contract is the five-year Center Operations Support Services, or COSS, contract, which provides support services at Johnson Space Center in Houston. The contractor will provide plant maintenance and operations support, logistics, engineering and design for critical requirements of backup power to the mission control center for the International Space Station and space shuttle programs, vacuum chambers and the Neutral Buoyancy Laboratory. DynCorp is the incumbent on the contract."The decision has no immediate impact on our work at Johnson Space Center," said Ben Medley, president of DynCorp Technical Services. "DynCorp will continue support of Johnson [Space Center] while NASA conducts the review the GAO has ordered it to perform. We anticipate that this review will ultimately confirm DynCorp's award, because we believe we are the best value contractor."In this contract, four competitors ? only Johnson Controls World Services and DynCorp are identified in the decision ? were to have their bids evaluated on three factors: mission suitability, past performance, and cost and price. NASA's selection was based on best value rather than lowest prices. Mission suitability and past performance were given a combined weight of 50 percent in the decision, while cost made up the other 50 percent.Although Johnson Controls scored significantly higher on mission suitability, garnering 950 points out of 1,000 possible to DynCorp's 684 points, NASA awarded the contract to DynCorp because it offered a price of $175.1 million, compared to Johnson Controls' price of $189.6 million. DynCorp was eventually awarded a base contract of $143 million.The problem with this decision, the GAO said, was that NASA did not adequately explain why DynCorp's lower price offset Johnson Controls' excellent mission suitability rating.Khoury said that when an agency's solicitation spells out the criteria it will be considering, if there are notable differences in how bidders have performed, those differences have to be considered. The decision-maker may not agree with the criteria, Khoury said, but he can't ignore the differences without giving the reasons for making them irrelevant.After Johnson Controls filed its protest, NASA issued an override of the GAO's stay of performance of the contract, arguing that the space agency could not wait for the GAO's decision on the protest because "contract performance is in the best interests of the United States, and that urgent and compelling circumstances exist which significantly affect the interests of the United States."NASA filed its response to the protest and included an addendum to the original source selection statement justifying its selection. But the GAO said the addendum did not provide enough information to justify NASA's award to DynCorp."GAO sometimes faces protests in which agencies try to make a new decision or offer a new judgment in response to a protest," said Dan Gordon, associate counsel for the federal watchdog agency.While GAO will consider all the information submitted by an agency in response to a protest, it recognizes that arguments the agency makes post-decision can be more justification than rational explanation, Gordon said.GAO told NASA to go back and make a new source selection decision that is backed up by a comparative analysis of the proposals and the rationale for any cost and technical tradeoffs. If another company wins, NASA should terminate DynCorp's contract and award it to the new company.The GAO also said Johnson Controls should be reimbursed for its costs in filing and pursuing the protest, including reasonable attorneys' fees. This is a standard action, Khoury said."The protester is like a private attorney general policing the regulations," he said. "They shouldn't have to pay the price for playing that part."As for the timing of the new source selection process, there is no hard and fast timeline. But agencies have to report to the GAO within 60 days whether they are implementing the recommendations, Gordon said.A Johnson Controls spokeswoman declined to speak about the protest victory because the contract award remains unsettled."We sent this around our office that in the next 'best value' protest case, you want to cite this," Khoury said of the ruling. "Johnson Controls is another case in a line [of cases] that does stand for the proposition that source selection authorities can't look at dramatic differences and say they're basically equal.".XXXSPLITXXX-NASA's scoring of bids from DynCorp and Johnson Controls for the Center Operations Support Services contract. The award was based on best value, with mission suitability and past performance weighted at 50 percent, and cost and price weighted at 50 percent.