Commercial item provisions in Schedule contracts upheld in bid protest appeal

CGI Federal has prevailed in a bid protest fight it took to the U.S. Court of Appeals, and the court’s ruling has implications beyond a single company.

The Professional Services Council filed an amicus brief supporting CGI because the issue dealt with the need for GSA schedules to follow the same commercial item provisions as any other type of government contract.

This sequence of events that raised the issue began in February 2014 when CGI Federal and HealthDataInsights Inc. filed pre-award protests on a Center for Medicaid and Medicare contract to collect overpayment. Both companies were incumbents when CMS released the solicitation for the new contract.

CGI and HealthDataInsights argued that CMS had changed the solicitation in a way that restricts competition and violates current laws and regulations—specifically that it does not follow the commercial practices laid out in part 12 of the Federal Acquisition Regulation.

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Multiple companies protest $1.6 billion Pentagon contract

Several companies have filed bid protests over the Defense Information Systems Agency’s recent $1.6 billion Defense Departmentwide licensing agreement with VMware.

Since Feb. 19, Amazon Web Services, Citrix, Nutanix and Minburn Technology Group, a Microsoft reseller, have filed formal bid protests with the Government Accountability Office on the DISA joint enterprise license agreement with VMware, citing an overly broad agreement that stifles competition.

Based on the contracting language, the bid protesters also contend the contract re-up is an improper sole-source request for cloud services that would give VMware an unfair advantage competing for DOD’s growing cloud demand.

So many vendors responded to the Feb. 9 solicitation that the government requested additional time to respond to questions received Feb. 19, suggesting the feedback received was highly contentious.

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Acquisition 101: When a bargain isn’t a bargain

When my wife and I purchased our first vacuum cleaner, we selected a cheap model. It met all the specs of what we needed, did a minimally acceptable job and lasted little more than a year before it died. Not learning the lesson that buying the first vacuum should have taught us, we immediately bought another cheap vacuum to replace the first one, and it died an early death about 18 months later. We finally did learn our lesson with the third vacuum and paid slightly more for a better vacuum that has lasted six years (and counting).

Much like our predicament with the rotating vacuums, federal contracting professionals are facing increasing pressure to purchase goods and services as cheaply as possible using a method commonly referred to as “lowest price/technically acceptable” (LPTA)—even if it means minimal acceptability.  This push is laudable in theory, but the reality is often higher prices and a smaller pool of quality contractors, while robbing contracting officers of any discretion to choose a solution or product that is more cost-effective in the long term.

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About the authors: Eric Crusius, a partner with Fed Nexus Law, focuses on government contracts, cybersecurity, employment law and complex litigation. Mitchell Bashur, an associate at Fed Nexus Law, also contributed to this column.

Company excluded from competition protests $5 billion Army IT contract

A $5 billion Army contract program for information technology that’s almost two years behind schedule could be delayed even longer, as at least one company excluded from the competition files a protest in a federal court.

MicroTechnologies LLC of Virginia confirmed it filed a protest Jan. 9 in the U.S. Court of Federal Claims against the Army’s decision to exclude the company’s bid for the Information Technology Enterprise Solutions-3 Hardware program, or ITES-3H, to supply the Army commercial IT hardware.

While all documents in the case are sealed, MicroTech General Counsel and Chief Administrative Officer Aaron Drabkin said the grounds mirror those included in its protest filed with the Government Accountability Office (GAO), which was denied in October 2014. The company raised several challenges to the agency’s evaluation of its past performance.

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Navy’s $2.5 billion plan for shipboard networks hits snag after GAO partially upholds protest

The Government Accountability Office has partially sustained a bid protest filed by contractor CGI Federal over a $2.5 billion set of U.S. Navy contracts. GAO’s ruling could further delay Navy’s plans to upgrade the nation’s surface warship fleet.

Navy logoIn August, the Navy awarded the contracts to five companies – BAE Systems Technology Solutions & Services, General Dynamics C4 Systems, Global Technical Systems, Northrop Grumman Systems Corp. and Serco, Inc. However, work ceased Sept. 2 when losing bidders CGI Federal and DRS Laurel Technologies protested the decision.

GAO entirely denied DRS Laurel Technologies’ protest over the Navy’s Consolidated Afloat Networks and Enterprise Services — or CANES — system and portions of CGI Federal’s protest.

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