Energy moves ahead on $2B contract despite protest

ActioNet’s efforts to thwart a $2 billion contract award to Accenture have suffered some setbacks in recent weeks.

The company is fighting to hang onto an incumbent contract for IT services to the Energy Department, who selected Accenture for the work late last year.

ActioNet has already lost a protest it filed with the Government Accountability Office after Accenture won the blanket purchase agreement. The fight has continued at the U.S. Court of Federal Claims.

Many of the filings are sealed, but what is public shows that ActioNet has suffered some early losses.

Judge Eric Bruggink denied ActioNet’s request for a temporary restraining order that would have stopped DOE from issuing task orders to Accenture.

ActioNet said it will be harmed for several reasons: lost revenue, loss of employees (mostly hired by Accenture) and the difficulty of reverting back to ActioNet if it prevails in its protest.

But those fears from ActioNet didn’t sway Bruggink, who sad he has to weigh the likelihood of ActioNet prevailing in the protest and whether it would suffer irreparable harm. He has to balance the harm between ActioNet and the Energy Department and Accenture. And he has to consider whether the public’s interest is served.

In this case, the judge paid particular attention to what DOE Chief Information Officer Max Everett wrote. The contract in question supports his office and is known as the CIO Business Operations Support Services, or "CBOSS" contract.

He told the judge in a filing that the department’s critical legacy systems are “operating near, at or beyond end-of-life status.”

Not modernizing these systems “exposes the department to potential loss of data, endangers essential capabilities, and fails to protect the department’s systems.”

Everett also wrote that the work ActioNet currently does for DOE isn’t comparable to the work that will be performed under CBOSS. Under CBOSS, the Energy Department plans to change how it manages and measures performance on IT services and cybersecurity by modernizing its systems.

Allowing the Energy Department to issue task orders to Accenture before the court rules on ActioNet’s protest will let it minimize risk and have an operational impact on the department’s mission, he said.

The judge said he weighed the competing statements and arguments presented by ActioNet and the Energy Department in making his decision.

He concluded that ActioNet would not be harmed irreparably. If employees left and ActioNet prevailed in its protest, then it could hire those employees back. The lost revenue at this early stage of the contract is a small percentage of the $2 billion ceiling. He didn’t rule on whether ActioNet has a chance to prevail.

In its protest to GAO, ActioNet said that its past performance was improperly scored. DOE found that the past performance ActioNet submitted didn’t demonstrate that the company had experience performing IT modernization and migration to the cloud.

The department also scored ActioNet’s management approach below Accenture’s. DOE found that ActioNet’s management approach wasn’t proactive enough. But the company argued unsuccessfully that the department was applying an unstated evaluation criterion.

GAO found the Energy Department had made a reasonable decision in picking Accenture. On several points that ActionNet raised, GAO ruled that the department was able to describe its reasons for picking Accenture and those reasons were consistent with the solicitation.

While the complaint filed at the Court of Federal Claims is still under seal, typically when a company goes to the court it repeats many of the arguments from its GAO filing.

In the wake of denying ActioNet’s temporary restraining order, Accenture has put out a press release announcing that it won the contract. DOE also announced a $16 million task order award. Two task orders were awarded when the department first picked Accenture.