“Protests slow down a procurement so much that it’s possible that the scope is no longer relevant by time you get to award. You try to make accommodations as necessary with the scope or pricing, but at some point it may no longer meet the needs of your customers,” said Emily Murphy, the former administrator of the General Services Administration and a long-time House staff member working on acquisition issues. “If protests add too much time, it does undermine the usability of the GWAC and that could make agencies reconsider the value of GWACs.”
Murphy said the number of protests that GSA faced with its Alliant 2 small business GWAC and the time it took to resolve them was one of the main reasons GSA decided to abandon it and start over with Polaris.
The 117 protests over CIO-SP4 may just be a record number for any one contract. While GAO doesn’t keep statistics on this data, procurement attorneys and other experts don’t remember a time when a vehicle elicited this many complaints.
A history of problems
Bob Lohfeld, CEO of Lohfeld Consulting, which provides proposal management and other contractor support services, said he wasn’t surprised by the number of protests given the history of challenges NITAAC faced with CIO-SP4.
“Anytime you take a segment of the market and grant access to limited number of companies and the others sit on the sidelines for next decade, it’s life or death,” he said. “If they can’t get access to the contract and customers, they are hurt, which makes it easier to say, ‘I’m going to protest and I’m going to keep protesting until I get in,’ because it is so critically important to companies.”
Many of the protests, if not all of them, focus on NITAAC’s approach to the self-scoring system and the agency’s decision to disqualify bidders from round two. GAO has until mid-February to decide these complaints.
One vendor executive, who is protesting, but requested anonymity in order to talk about their situation, said they missed the cut, had a debriefing and still didn’t know why their bid wasn’t good enough.
“A lot of the protests are trying to figure out where was NITAAC’s threshold and did they really validate all of those points? If someone claimed 9,500 points or whatever the number was, did NITAAC actually ensure they had that?” the executive said. “If you think about how the evaluation was structured, if you weren’t close to 100% of everything on the list, you didn’t move on to next phase. So companies who have 95%+ on scoring sheet are not getting a chance and that is the problem.”
On top of that, Lohfeld and others said depending on the size of the company, they may have spent $200,000 or more on proposal costs. The industry executive said their proposal was over 1,000 pages.
Watching the next 40 days
Experts say all of these issues factored into the large number of protests.
A NITAAC spokesperson said they were unable to provide comment on the protests or what it would do to their timeline.
Murphy said vendors may be able to get a better sense of the impact of these protests in the next 40 days. While GAO has 100 days to decide a protest, the first half of that time is a good signal about how this entire process will move forward.
“Either you will see NITAAC offer to take corrective action or GAO rejecting the protest as moot because vendors should’ve brought this issue up pre-solicitation, or NITAAC and the protestors will double down and let it ride,” she said. “And there is always the chance that vendors file a protest with the Court of Federal Claims and that could really extend the protest period. That is where GSA decided not to go forward with Alliant 2 small business.”
The challenge of protests on large multiple award contracts, whether they are technically GWACs or not, is not unusual. The General Services Administration, NASA and NITAAC have all faced this problem over the years.
A solution to protest problem
Lohfeld and other experts say there are solutions to the protest problem.
The Navy’s Seaport-e with more than 2,400 awardees avoided the protests saga by letting every qualified contractor on the vehicle and let the competition happen at the task order level.
GSA’s 8(a) STARS III contract also found a solution to this problem.
With more than 1,000 bidders, GSA used an approach that helped avoid protests because it gave vendors an opportunity to continually get on the contract.
“For every company who didn’t make the first cut, we helped them improve their submission. We asked them to respond to questions or if we were unclear about something, we worked through it,” said Larry Hale, acting director of GSA’s Office of IT Services in the Federal Acquisition Service, at the recent Washington Technology GWAC summit. “We made a second award and a handful that didn’t make that one, we worked with them over the course of a year and we awarded a third cohort. Now we have over 1,100 companies on 8(a) STARS III. Of those, 25% have gotten task orders and 149 small disadvantaged businesses got first-ever government task order through the program.”
Tiffany Hixson, the assistant commissioner in GSA’s Office of Professional Services and Human Capital Categories in FAS, said at the Coalition for Government Procurement fall conference on Nov. 17 that after the initial set of awards, her office is planning to keep OASIS+ open to new bids continuously.
“With the OASIS on-ramps, here we are two-and-a-half years later and we are still dealing with protests,” Hixson said. “So one innovation we are testing in this procurement and how we can mitigate that pressure on us, is to make sure the door stays open to agency industrial bases for new players by having it continuously being open. Companies will have to meet the evaluation standards set in the RFP. They will know what they are.”
Lack of details frustrating vendors
The industry executive who is protesting CIO-SP4 said part of the problem was NITAAC wasn’t clear about the demarcation line for bidders.
“By stating up front what the threshold is would’ve help out a lot of companies and their decision to bid or not to bid,” the executive said. “If companies are coming in at 97% and not making the threshold, that is frustrating and why a lot of folks are protesting.”
The executive praised GSA for how they are being more transparent with OASIS+ and for having the continuous on-ramps to companies can keep working to get on the vehicle if they aren’t qualified in the first round of awards.
As for the future of large GWACs or multiple award contracts, experts agreed that agencies need to rethink their approaches.
Lohfeld said the push to use “best in class” contracts remains part of the problem.
“Agencies should call it an application, not a proposal. Companies should present their credentials, like applying to college,” he said. “If you want to give maximum access to the government market to as many companies as you can, and they have a right to participate, then you can’t take away that right when you use a BIC strategy. Agencies need to make it easier to bid and open up the winners to far more companies so they have access to the market. Otherwise, you are doing a disservice to America, especially if the number of companies supporting the government are decreasing.”