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Protests add twists, turns and oversight

Bid protests have the potential to add twists and turns to a procurement that, depending on which side you are on, are either good or bad.

Standing on the outside looking in, however, it is hard to tell whether the right decision has been made. Yes, the Government Accountability Office lays out its legal and regulatory arguments, but generally it seems like contractors are the victim.

Take American Systems Corp. and the protest it lost involving a Seaport-e task order to provide professional services to the Navy Space and Naval Warfare Command. ASC won the contract over the incumbent Booz Allen Hamilton. The contract was worth about $60 million to Booz Allen.

Booz Allen protested the award and challenged the way the Navy evaluated ASC’s proposal under the cost management capability and key personnel factors.

The Navy then decided to take a corrective action, which caused GAO to dismiss the Booz Allen protest.

The Navy’s correction action basically restarts the procurement and requires bidders to submit new proposals under a new solicitation. At the same time, the Navy issued a bridge contract to Booz Allen so it could continue to get support for various projects.

The corrective action and the bridge contract prompted ASC to file a protest of its own, claiming the corrective action was unreasonable and too broad.

After going through the process at GAO, ASC’s protest was denied. GAO found that the Navy was within its rights to take the corrective action and to issue the bridge contract.

ASC challenged the corrective action, arguing that the Navy’s corrective action didn’t address the concerns raised by Booz Allen’s protest because the protest didn’t challenge the RFP’s evaluation criteria.

But GAO said that didn’t matter. The Navy’s corrective action was addressing a flaw the agency believed existed in the procurement process and it acted reasonably by pulling the award.

That leaves ASC with the job of bidding and winning the contract again. And, of course, it’ll be competing with Booz Allen again.

I reached out to ACS for a statement. “Naturally, we are disappointed in GAO’s decision,” said Peter Smith, president and CEO. “We have been providing support to the U.S. Navy for more than 40 years, and we will continue to build on that relationship.”

Booz Allen’s protest pointed out what it saw as flaws in the solicitation, and the Navy agreed, prompting it to take corrective action and address those concerns in the new solicitation.

So, on one hand, it shows the system working, but it seems to me that the flaws should have been evident ahead of time and addressed. This procurement went through several rounds of amendments, shouldn’t one of those caught the problem?

Perhaps the flaws weren’t evident until the proposals came in, but again, the blame lies with the Navy. Shouldn’t they have been able to look at the differences between ASC’s proposal and Booz Allen’s proposal and realized then that there was a problem?

It took Booz Allen’s protest to bring the problems to the Navy’s attention. It almost seems as if the Navy is relying on the contractor community to police its procurements.

That might be an extreme statement, and the truth is more complicated, but it does show the role protests are playing in today’s government market.

Posted by Nick Wakeman on Mar 29, 2016 at 12:31 PM


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