AECOM wins second shot a $1B contract

There is an old adage in pickup basketball – No harm, no foul. Sure, maybe there was a hack or a travel or you set a moving pick, but if the improper action didn’t result in a score or the successful defense of a score, you keep playing. You don’t call out the foul.

In its decision backing AECOM’s protest, that’s basically what the Government Accountability Office is telling the Energy Department. AECOM made a mistake when it filed its proposal for a $1 billion contract to the wrong part of the FedConnect portal.

AECOM was one of several bidders for the Energy Savings Performance Contract or ESPC. Proposals were due May 13. AECOM filed its proposal May 12, but instead of filing it to the response center, it filed it to the message center.

An Energy Department contract specialist saw the mistake and sent a message back to AECOM’s designated employee telling him about the mistake. But the AECOM employee didn’t check the message center, and didn’t read the message.

Then, in late July, the Energy Department sent a letter to AECOM telling the company it was rejecting the proposal because it was not submitted properly according to the instructions of the solicitation. In early August, AECOM filed its protest.

An interesting thing is that AECOM freely admits its mistake, but argued that the Energy Department knew it was filed on time, so it knew that the proposal was out of AECOM’s hands. The company could not make any revisions after the deadline.

Therefore, the company argued that accepting the proposal even though it was filed in the wrong place didn’t harm any competitors or give AECOM an unfair advantage.

The agency countered that the company didn’t follow the rules and was shifting responsibility from itself to the Energy Department. Accepting the proposal would be a disadvantage to competitors because it added another company to the field. The Energy Department expects to make 12 awards under the contract. The agency also said moving the proposal from part of FedConnect to the other part was an undue burden.

To support AECOM’s position, GAO turned to a 1987 case where Abt Associates was supposed to file a proposal to two locations and only filed it in one. Bids that don’t follow a solicitation’s requirements “need not be rejected in every instance,” GAO wrote.

“When the deviation involves a matter of form rather than of substance, or when the government’s needs will be satisfied by acceptance of a deviating offer and other offerors would not be unfairly prejudiced by the acceptance, such an offer can be accepted,” GAO ruled in the Abt case.

The Energy Department also knows that the submission was filed on time, but just to a different location. GAO didn’t buy the agency’s department that moving the proposal was a burden.

GAO is recommending that the Energy Department let AECOM back into the competition, but it isn’t ordering the agency to pay AECOM’s protest costs, because it was its own mistake that caused the problem.

Interestingly, GAO also cited another recent case involving the Energy Department and the FedConnect portal. Another company did the same thing that AECOM did – file to the message center rather than the response center.

But this time, no one noticed. It was months later that the Energy Department discovered the mistake, but by then, it was too late. GAO said it was proper in that case to reject the proposal because the agency had no knowledge that it existed.

In a side note to the Energy Department, GAO suggests that the agency might need to provide “more robust guidance” on how to use the FedConnect system.

The Energy Department still cannot make an award. A second protest filed by Johnson Controls Government Solutions is still pending.