IBM dinged for piecemeal approach to Army protest
By
Nick Wakeman
IBM's protest of a nearly $800 million Army enterprise resource planning contract was dismissed as untimely because the company was raised its challenges in a piecemeal fashion. The Government Accountability Office says that approach is a big no-no.
One lesson from this dismissed bid protest by IBM is that if you see a problem with a solicitation -- keep reminding the Government Accountability Office that you still consider it a problem, even if you find other issues you think are more important.
The Government Accountability Office dismissed IBM’s protest involving the nearly $800 million Army Unified Enterprise Resource Planning Capability Support Services contract because GAO felt the company had dropped a concern and then re-raised it. But it was too late by then.
The contract consolidates several existing ERP contracts. IBM and Accenture are incumbents on some of the consolidated contracts.
Accenture won the contract with a $787.7 million bid in late 2019. Accenture and IBM are the only companies that pursued the work.
IBM’s first protest in December 2019 netted a corrective action. But the Army again picked Accenture, which led to a second IBM protest. Then came another corrective action, which triggered another protest by IBM.
Protest number three by IBM claimed the corrective action didn’t address problems with the solicitation.
The rub is right there. IBM had raised that issue earlier. But during all the back and forth of past awards and protests, IBM didn’t respond to an Army’s response to its earlier challenge of the terms of the solicitation.
When IBM didn’t raise its concerns about the terms, GAO believed that it had dropped that part of its protest over how government employees would be incorporated into the work. In the eyes of GAO, IBM essentially communicated it abandoned that part of its protest. So when IBM later brought up problems it had with the terms of the solicitation, GAO said the company could no longer challenge the terms of the solicitation.
GAO said that IBM’s approach to the protest was an “improper piecemeal presentation.” GAO wrote. “Our office will dismiss a protester’s piecemeal presentation of arguments that could have been (or, in this case, were already) raised earlier in the protest process.”
GAO said a protest is obligated to present all of the known legal or factual grounds for its protest. A piecemeal approach causes delays, GAO said.
IBM argued that the clock restarted because the Army was still making amendments to the solicitation through the corrective action process and through questions and answers with the bidders. But GAO said that was not the case because the alleged deficiencies were already apparent to IBM.
Here is one final twist. In my reading the protest decision, it sounds like GAO agrees with IBM on how there are problems with the procurement.
GAO said it will not make a recommendation that the Army implement fixes: "We note that this procurement appears to be significant to the Army and based on its prior history, will likely be the subject of a future post-award protest.”
The Army might want to provide additional clarification before the next set of proposals come in, according to GAO.