Denied protest offers lessons about hiring former feds

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Important questions about hiring former government officials are raised in this lost protest over a $2.5 billion NASA enterprise IT contract, which all parties made reasonable arguments in.

In mid-February, we reported that Science Applications International Corp. had lost its protest involving a $2.5 billion NASA enterprise IT contract that the incumbent lost to Leidos.

SAIC was the incumbent, but lost the recompete to Leidos.

The Government Accountability Office has now released its decision and we have more insights into the contract, NASA’s thinking and why SAIC lost its protest.

Of particular interest is SAIC’s allegation that Leidos gained an unfair competitive advantage because the latter hired as a consultant a former NASA official who was the source selection authority during the early days of the contract's development.

An earlier protest by SAIC sparked NASA to investigate the allegations.

GAO's decision opens a door into the sometimes-murky world of hiring former federal officials and when they can be involved in projects they worked on when in government. The decision describes in great detail SAIC’s allegations, as well as the responses of NASA and Leidos.

From GAO’s perspective, whether he was hired as a consultant or a full-time employee made no difference.

In my reading of the decision, all sides raise reasonable arguments. It is easy to understand SAIC’s concerns as well as Leidos’ and NASA’s response.

Leidos hired the former source selection authority as a consultant and no one challenges that he had direct knowledge of the early stages of the procurement. He also had knowledge of SAIC’s performance on the predecessor contract because of his role with that contract.

SAIC argued that knowledge gave Leidos an unfair advantage because it gave them access to information that was not publicly available.

In their defense, Leidos and NASA countered that this person (identified only as X in the protest decision) participated in two early requests for information. But he recused himself and left NASA before the procurement strategy meeting was held and the draft and final solicitations were issued.

Leidos and NASA argued any information he had would have been incorporated into the solicitation and would be available to all. The decision includes a timeline of procurement actions and X’s role as the source selection authority.

The NASA contracting officer investigating the allegations also said that any information X had would have been outdated by the time proposals were due.

A second point of contention is that X told Leidos to put a priority on cybersecurity because NASA and SAIC had an issue here when working on a pilot program under the predecessor contract.

When investigating that allegation, the NASA contracting officer said that the cybersecurity issue was well-documented in publicly available records, including an inspector general report.

SAIC also argued that NASA failed to consider the appearance of impropriety of X helping to prepare Leidos’ proposal. But GAO said NASA’s investigation was “meaningful” and the appearance question didn’t need to be addressed. The GAO decision includes a detailed description of NASA investigation, which included reviewing X’s emails and calendar.

GAO ultimately rejected SAIC’s challenges and again leaned on what the description describes as a thorough investigation of the allegations. NASA reached a reasonable judgement that GAO said it couldn’t overturn.

I have no inside information. but I can’t help but feel that GAO struggled with this one. Because the description of SAIC’s complaints make them sound reasonable. The responses from Leidos and NASA also sound reasonable. And then GAO’s conclusion makes sense as well.

The decision should be a must-read for any GovCon general counsel’s office and human resources as well. Hiring former feds is something all companies do, so this decision reviews some important questions to answer as companies make those valuable hires.

SAIC still has the avenue open to it of taking its case to the U.S. Court of Federal Claims. I’ve asked that question of SAIC and will update this post if I get a response.

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