Posted on August 11th, 2019 by John Manfredonia
In the protest of Arch System, LLC, B-417567.2 (July 2, 2019), the protester challenged the Government’s decision not to exercise an option on the protester’s contract. The Department of Health and Human Services issued a task order to the protester for software testing with a base year period and four, 1-year option periods. The Government notified the contractor that it did not intend to exercise the first option. Instead, the Government planned on awarding a sole source bridge contract pending award of a new follow-on competitive procurement for software testing services.
The protester argued that the Government’s decision not to exercise its contract option, and to issue a sole-source, short-term task order for the requirement was unlawful, arbitrary, capricious, and unreasonable.
The GAO noted that its jurisdiction is limited to challenges to the award or proposed award of contracts. 31 U.S.C. § 3552. The GAO therefore generally does not review matters of contract administration, which are within the discretion of the contracting agency and for review by a cognizant board of contract appeals or court. The GAO therefore held that it does not not have jurisdiction over the protest.
This case is consistent with the long line of GAO cases that dismiss protests challenging the Government’s decision not to exercise an option under an existing contract.
Arch Systems, LLC, B-417567.2 (July 2, 2019)
Posted in GAO Protests, Options
Posted on February 24th, 2017 by John Manfredonia
Antico Cantiere Del Legno Giovanni Aprea Di Cataldo S.R.L., of Sorrento, Italy (“Antico”) submitted a quote for boat repairs to the Navy. The Navy rejected its proposal as technically unacceptable because the method for lifting the boat out of the water differed from the dry-docking procedures set forth in the solicitation. Specifically, the solicitation stated that the “[t]he craft will be removed [from the water] thru the use of a boat ramp and winch heaving system.” Antico planned on vertically removing the boat from the water with a boat travel lift.
Antico argued that its dry-docking procedures were preferred and that use of an inclined slipway hauling system was “obsolete,” “lacking of approved technical, engineering & safety certifications issued by the competent Italian Port Authorities,” and “known to transfer a great amount of undesired tensional stress [to] the boat’s wooden hull and superstructure elements.”
Even if Antico’s dry-docking procedures were better than what was specified in the solicitation, the GAO held that it will not disturb the Agency’s determination of its needs. Further, if Antico felt that the requirements were unduly restrictive it should have protested before the closing date for quotes. In this regard, the GAO stated:
Antico does not dispute that its proposed dry-docking procedures were not those required by the solicitation. Rather, the protester argues that its alternate approach was preferable to–in fact, better than–those required by the RFQ. Contracting agencies, however, have broad discretion to determine their needs and the best way to meet them.4 See, e.g., Trandes Corp., B-411742.4, Feb. 22, 2016, 2016 CPD ¶ 61 at 6; URS Fed. Support Servs., Inc., B-407573, Jan. 14, 2013, 2013 CPD ¶ 31 at 4. Here, the RFQ’s dry-docking requirements were unambiguous. To the extent Antico believed that these requirements were improper, or that vendors should have been permitted to propose alternate drydocking approaches, it was required to challenge this perceived solicitation defect prior to the closing date for receipt of quotations. See 4 C.F.R. § 21.2(a)(1); DOER Marine, B-295087, Dec. 21, 2004, 2004 CPD ¶ 252 at 4 n.3. A vendor simply cannot wait until after award to dispute the merits of solicitation requirements with which it disagrees. The protest is denied.
The lesson learned here is not to wait until award to contest a solicitation requirement. You must do so before proposals are due.
Antico Cantiere Del Legno Giovanni Aprea Di Cataldo S.R.L. , B-414112 (February 21, 2017)
Posted in GAO Protests
Posted on September 13th, 2016 by John Manfredonia
The GAO release its decision on September 12, 2016, sustaining a protest filed by AT&T over a $38.5M networking contract that the Air Force awarded to MacAulay-Brown. AT&T was the incumbent for this networking contract. The GAO found that the Air Force failed to consider a potential Organizational Conflict of Interest by a subcontractor on the MacAulay-Brown Team. This subcontractor – whose name was redacted from the GAO decision – had been working on an Air Force contract for acquisition support. AT&T argued that the subcontractor had access to AT&T’s staffing levels as the incumbent, which was nonpublic information.
The Contracting Officer compared proposals and found that Mc MacAulay-Brown’s proposal “did not mirror incumbent [AT&T] contract staffing levels.” Because of this, the Contracting Officer concluded that MacAulay-Brown did not receive nonpublic staffing information from its subcontractor. AT&T argued, and the GAO agreed, that “a different staffing level than the incumbent contractor does not reasonably demonstrate that the non-incumbent contractor was not given access to the incumbent contractor’s information.”
The GAO noted that FAR §§ 9.504(a) “requires that contracting officers identify and evaluate potential organizational conflicts of interest, and directs contracting officers to avoid, neutralize, or mitigate potential significant conflicts of interest so as to prevent an unfair competitive advantage or the existence of conflicting roles that might impair a contractor’s objectivity.” The GAO found that “the contracting officer does not appear to have considered the possibility that a non-incumbent contractor could have made use of the incumbent contractor’s proprietary information without necessarily “mirroring” the specific staffing levels.”
This case illustrates the need to vet members of your team for potential conflicts of interest and institute a mitigation plan to avoid disqualification. In this regard, the GAO noted that:
As our Office has held, mitigation efforts that screen or wall-off certain individuals within a company from others, in order to prevent an improper disclosure of information, may be an effective means to address an unequal access to information OCI. Enterprise Info. Sys., Inc., B-405152 et al., Sept. 2, 2011, 2011CPD ¶ 174 at 11; Aetna Gov’t Health Plans, Inc.; Foundation Health Fed Servs., Inc., supra at 13.
However, in this protest, the GAO found that the record did not document the Contracting Officer’s review of the subcontractor’s mitigation plan and conclusion that it was adequate.
Posted in GAO Protests
