Peraton protest dismissed as premature

Peraton apparently found a lot of things not to like about how the Army’s Intelligence and Security Command is competing an open-source intelligence task order.

The Army is awarding the order via ASTRO, a contract vehicle finalized in 2021 for manned and unmanned products.

Peraton was rejected in phase one of the competition because the Army felt the company had an organizational conflict of interest. The company filed a protest in March and the Army later proposed a corrective action.

The company did not like the corrective action for several reasons, including how the alleged conflict would be investigated. Peraton also felt that the Army was withholding documents.

In a third claim, Peraton says the Army is just playing games and does not actually intend to reconsider the exclusion of the company from the competition.

GAO has rejected all of those arguments, mainly because the allegations are premature. The Army has not concluded its investigation into the alleged conflict, in part because the branch stopped its investigation after Peraton filed its protest.

In a nutshell, the Army has a problem with Peraton in this competition because the company hired two former Army personnel to work on their proposal. One of those former Army officials helped to develop the solicitation for the contract.

When Peraton was first eliminated from the competition, the company objected to how the Army neither investigated the alleged OCI nor interviewed anyone including the former officials.

With its corrective action, the Army opened an investigation and that essentially let Peraton back into the competition.

But according to the GAO decision, the Army and Peraton clashed on several topics and ultimately Peraton filed another protest.

One issue is the availability of non-disclosure agreements the two former Army officials signed before they became Peraton employees.

The company asked for copies of those NDAs, but the Army said it would only provide them if Peraton explained in detail why.

In its new protest, Peraton argues that the Army is withholding relevant documents.

Peraton also objected to a questionnaire the Army wants completed as part of its investigation. The company believes those questions were a backdoor way of investigating potential violations of the Office of Federal Procurement Policy Act.

The questions were not related to the OCI allegation, Peraton argued.

GAO dismissed Peraton’s protest as premature because the Army has not completed the investigation, so no final action has been taken.

GAO also said that it was unconvinced by Peraton’s argument that the Army was running a covert investigation of possible violations of the OFPP Act.

Peraton is now stuck in a wait-and-see situation. The Army will either eliminate the company from the competition again, in which case Peraton can file another protest.

Or the Army could leave Peraton in the competition and if the task order is awarded to another company, Peraton again will be free to file another protest.

In short, another protest or two involving this competition is guaranteed.

This protest is just another of several we’ve seen in the last year or two involving allegations of organizational conflicts of interest. Sometimes, these are successful grounds for a protest. In other times, GAO rejects the argument or says the risk has been mitigated.

One common thread is the level of scrutiny and documentation. No one is saying that contractors cannot hire former government officials, in fact that is a regular event in this market.

But when companies do, clear and written down plans about what they will do and the projects they will work on are necessary.

Companies have successfully defended themselves against OCI allegations by doing just that. They acknowledge a potential conflict and explain the plan to mitigate it.

It is too early to tell if that is what Peraton has done here. The Army has restarted its investigation, so we shall wait.