Lessons and warnings from CACI's lost Navy bid protest
In reading the Government Accountability Office’s decision rejecting CACI International’s bid protest, it is obvious that mistakes were made.
But all of the mistakes aren’t CACI’s, even if the fatal error is.
The contract in question is with the Naval Sea Systems Command and is for professional support services for the mission capabilities of the littoral combat ship. CACI has held the contract since 2003, and according to the GAO decision, the recompete is worth over $100 million.
The solicitation said the Navy would compete the work as a task order through the Seaport-e contract. Among the requirements was that the proposals include the resumes of the people filling nine key positions.
And here is where CACI fell short. The company failed to include those resumes in its proposal, and because of that mistake, the Navy found that CACI’s proposal was non-compliant and ineligible for award. The company was eliminated from the competition.
In its protest and subsequent arguments before GAO, CACI admitted the mistake, but said it was an administrative error. CACI said that the agency, however, was being unreasonable by not engaging in discussions with CACI, which would have given it an opportunity to correct its proposal.
By asking for discussions as opposed to a clarification, CACI was admitting that its proposal lacked substantive information, GAO said.
OK, so it’s clear that CACI made a grave error, but from this point forward, I find GAO’s decision troubling because it points to some basic problems with acquisition regulations.
First, the Navy states in its solicitation that it wasn’t going to enter into discussions (this worked against CACI’s argument). But I was a little dumbfounded; why no discussions? This is a contract that will be worth at least $100 million. This isn’t a $1 million buy of hardware. These are professional services.
Granted, the agency would always have the right to enter into discussions, but its default – and this is perfectly fine in the acquisition regulations – is not to enter into discussions.
CACI apparently argued that the Defense Federal Acquisition Regulation Supplement, the DFARS, says that for contracts worth more than $100 million, contracting officers should conduct discussions.
Unfortunately for CACI, Seaport-e is governed by FAR part 16, not DFARS, and there is no requirement for discussions.
Another thing that I find troubling is that agencies aren’t required to document why they do or do not enter into discussions with bidders. Should there be some sort of thought process or reasoning behind that position?
CACI final argument -- that it is in the government’s best interest to enter into discussions -- also fell flat. GAO said that it might be in CACI’s best interest, but there is no documentation that the discussions are in the government’s best interest.
Yes, it is in CACI’s best interest, but I have to respectfully disagree with GAO. To me, the default should be discussions, particularly with large procurements such as this one.
For the default to be no discussion seems counterintuitive. If the goal is to make the best decisions, wouldn’t you want more discussions, not less?
Unless, CACI goes to the U.S. Court of Federal Claims, it has lost this contract. The Navy can move forward with awarding it to another bidder.
CACI declined to comment on GAO’s decision.
Posted by Nick Wakeman on Jun 23, 2015 at 9:33 AM