Remedy for Blatantly Illegal Bridge Contract

[jvanhorne]

Here's the scenario. Unnamed government agency has a publicly available website that offers certain services to other federal agencies. Website has links to contracts used for these services. These links show that the contract for these services had the last option (fifth year) exercised in FY09. Then a modification is listed pursuant to Option to Extend Services clause extending the contract for the first half of FY10. The day this extension expires the website shows a NEW contract for six months with no justification for other than full and open competition listed on the SF30. There has been no notice in fedbizops related in any way to this new contract.

Even a casual review suggests multiple violations of CICA, so a bid protest is filed with GAO. Agency lawyer calls in a day or two and asks what we can do to make the protest go away (no indication that the agency has any defense for its actions). Then, a few days later, a fedbizops notice is posted that the agency is planning to compete the requirement.

As far as I can tell the protest is a slam dunk winner. So the problem is what does the protester, who has had no chance to get any of this work for the last 18 months it has been pursuing this work, get out of this? Legal fees is a pretty useless remedy, but what else is there? And how if at all is the agency penalized for what looks like a clear violation of the law? It looks like the agency will promise (on a stack of FARs) that they will compete the work (eventually). I have an ugly feeling that GAO will be perfectly happy with that.

Is there any precedent for an out of the box remedy here?

[Crazy KO]

It could very well be that said "unnamed government agency" is or has justified a waiver not to synopsize or make public the information. Also, it could be that the 217-8 clause was used to extend the final option for 6 months (as it legally can) which makes the date 30 June 2010. You say "the day this extension expires the website shows a NEW contract..." 30 June 2010 is not here yet. Am I taking this statement out of context?

The agency may have competed it. You don't know that. You haven't given enough information. Ever hear of "FedTeDs?" Just a guess.

[Guest Vern Edwards]

So the problem is what does the protester, who has had no chance to get any of this work for the last 18 months it has been pursuing this work, get out of this?

If you are looking for compensation for lost business opportunities, I know of no basis for any such remedy. If you are serious, consult an attorney. If you are just blowing off steam, well, you have my sympathy.

[jvanhorne]

It could very well be that said "unnamed government agency" is or has justified a waiver not to synopsize or make public the information. Also, it could be that the 217-8 clause was used to extend the final option for 6 months (as it legally can) which makes the date 30 June 2010. You say "the day this extension expires the website shows a NEW contract..." 30 June 2010 is not here yet. Am I taking this statement out of context?

The agency may have competed it. You don't know that. You haven't given enough information. Ever hear of "FedTeDs?" Just a guess.

The agency already used the 6-month extension (10/1/09 to 3/31/10). The new contract runs from 4/1/10 to 9/30/10. I believe I mentioned we were dealing with federal fiscal years here.

Actually, I had not heard of FedTeDs, but a quick internet search produced the following information:

The Federal Technical Data Solution (FedTeDS) system was used over the past several years to post on-line technical data packages and other items associated with solicitations that required some level of access control. It interfaced directly with the Government wide Point of Entry (GPE), i.e. the FedBizOpps (FBO) system.

In April 2008, a new version of FBO launched incorporating FedTeDS' capabilities. This allowed FedTeDS to be retired. Its access control capabilities for controlling sensitive but unclassified document packages are resident now in FBO and available to agency buyers when building procurement notices.

The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council issued a final rule on Federal Acquisition Regulation (FAR) Case 2008-038 effective September 10, 2009. This ruling amends FAR Sections 5.102, 5.207 and 7.105 to (1) remove all references to FedTeDS and refer to the enhanced controls in the GPE, i.e. FBO, and(2) address technical data availability via GPE in lieu of FedTeDS, and (3) substitute GPE in lieu of FedTeDS in references to acquisition plans.

[jvanhorne]

If you are looking for compensation for lost business opportunities, I know of no basis for any such remedy. If you are serious, consult an attorney. If you are just blowing off steam, well, you have my sympathy.

Sorry, Vern. I am a lawyer. I didn't mention compensation for lost opportunity because I assume that it would not be available. I was actually looking for some out of the box ideas. Perhaps I came to the wrong place.

[Guest Vern Edwards]

I really don't know anything to suggest as an out of box remedy without some idea of what you're looking for.

[jvanhorne]

I really don't know anything to suggest as an out of box remedy without some idea of what you're looking for.

More money than I can get for legal fees (for whatever justification) or immediate new business for the client. And something more than a slap on the wrist for the agency (assuming the illegality is a blatant as it looks to be). It pains me to think they will get away with a promise to compete (someday). Of course, "out of the box" may be, or almost certainly will be, something I haven't thought of.

Perhaps, I should restate the question: Has anyone heard of GAO doing anything creative by way of a remedy in a situation like this?

[Guest Vern Edwards]

More money than I can get for legal fees (for whatever justification) or immediate new business for the client. And something more than a slap on the wrist for the agency (assuming the illegality is a blatant as it looks to be). It pains me to think they will get away with a promise to compete (someday). Of course, "out of the box" may be, or almost certainly will be, something I haven't thought of.

Perhaps, I should restate the question: Has anyone heard of GAO doing anything creative by way of a remedy in a situation like this?

I haven't. You are looking for justice. You are not going to get justice, even if your client deserves it.

[formerfed]

I started to say this yesterday I also haven't heard of any remedies like that either. I'm sure your client is just one of several companies qualified to compete. What's the remedy - give money to everyone that responds?

Actually when you dig into these situations agencies usually have a pretty good excuse why a recompetition acquisition got delayed. It can be for anything like other priorities overtook the recompetition needs, key agency personnel aren't available, the requirement is changing, or the agency is seeing how another requirement might impact this one. From your client's standpoint, none sound good. But it's a reality.

[Crazy KO]

The agency already used the 6-month extension (10/1/09 to 3/31/10). The new contract runs from 4/1/10 to 9/30/10. I believe I mentioned we were dealing with federal fiscal years here.

Actually, I had not heard of FedTeDs, but a quick internet search produced the following information:

The Federal Technical Data Solution (FedTeDS) system was used over the past several years to post on-line technical data packages and other items associated with solicitations that required some level of access control. It interfaced directly with the Government wide Point of Entry (GPE), i.e. the FedBizOpps (FBO) system.

In April 2008, a new version of FBO launched incorporating FedTeDS' capabilities. This allowed FedTeDS to be retired. Its access control capabilities for controlling sensitive but unclassified document packages are resident now in FBO and available to agency buyers when building procurement notices.

The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council issued a final rule on Federal Acquisition Regulation (FAR) Case 2008-038 effective September 10, 2009. This ruling amends FAR Sections 5.102, 5.207 and 7.105 to (1) remove all references to FedTeDS and refer to the enhanced controls in the GPE, i.e. FBO, and(2) address technical data availability via GPE in lieu of FedTeDS, and (3) substitute GPE in lieu of FedTeDS in references to acquisition plans.

[Crazy KO]

OK, thanks for the information...haven't worked in the intelligence community for a while now and so I just didn't know what happened to FedTeDS. But formerfed is right...there could be several reasons why it was done that way, including a mistake (intentionally or not) by the agency. I say to the client...get in line, there's a lot of you who have been unjustly wronged. Good luck.

[Don Mansfield]

Here's an idea. Write an evaluation of the contracting office's performance from the perspective of a propspective offeror. Put it on a Web site called GPARS (Government Performance Assessment Reporting System) (You would have to create the Web site). Allow other contractors and prospective contractors to submit written assessments of their dealings with other contracting offices. You could evaluate the a particular contracting office on the basis of their record of complying with regulations in soliciting offers and awarding contracts, clarity of their solicitations, their history of reasonable and cooperative behavior, their record of integrity and business ethics, their promptness and clarity of responses to offeror inquiries, the promptness of responding to requests for equitable adjustments, etc. I would imagine that this type of information would be valuable to a prospective offeror deciding which contracts it would like to compete for. It might also be valuable to agency management who want to know how they are perceived by industry. You could sell some advertising to pay for the site.

I am serious.

[formerfed]

Actually Don, something similar is done by a few civilan agencies that use a balanced scorecard to assess the effectivess of the office. Part of that is a survey to industry asking how the office is perceived along the lines you mentioned. The biggest difference is the responses aren't made public.

[brian]

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Jon,

GAO's Procurement Law Control Group doesn't do "creative." C.f., B-401472; B-401661.

They have an explicit charter at 4 CFR 21. They try not to exceed that authority. When they do, Vern blasts them with both barrels (see, for example, the thread on parity between HUBZone and 8(a).)

However, there is another bid protest forum at your disposal. To a pro se appellant, they seem far more accommodating: The US Court of Federal Claims. If the nominal filing fee is no obstacle, try your luck there. I don't think they are as constrained as the Comp. Gen. is about a case fitting within a section of regulations; they can hear most any claim that gets to the integrity of the procurement system.

But that is also what will probably limit any shot you have at getting your portion of Justice denominated in dollars. USCFC cares deeply about systemic problems that subvert justice, but have issued decisions that say (poetic license taken) they cannot create Justice to satisfy complainants, they can only fix the infrastructure of Justice/ Fairness/ Transparency/ Competition/ Fair & Reasonable Pricing/ Socio-Economic Programs, plus legal fees to the "private attorney general" who pursued the Government's interest in fixing things.

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I've been referred to (in a Congressional request to GAO, no less) as a "serial protestor." A Congressional Staffer suggested that I should be fined for filing frivolous protests. GAO responded that they have not determined any of my protests, or anyone else's, to be frivolous, and to take such a task on (evaluating protests for frivolity) would be a far bigger waste of time than just handling all protests in their usual professional manner.

Going further, GAO pointed out that in some cases my protests actually uncovered systemic problems that could undermine public confidence in the integrity of the procurement system. You know how the FAR ended up with 20,000 paragraphs, don't you ? 2,000 are attributable to Congressional direction or legislation; 18,000 come out of protests and court decisions.

The GAO isn't in this protest business to achieve fairness or justice; they are the Guardians of the Integrity of the Procurement System. The remedies at 4 CFR 21.8 seem adequate to protect it; maybe a Judge can help with fairness and justice.

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As far as comments by others that Government CO's make honest mistakes, I can witness to that. 2 months ago I protested a JOFOC/ Sole Source J&A that said only 1 particular major defense contractor could do what I had done on other contracts. My annual turnover has never exceeded $2 Million.

Instead of asking in an email how they came to that dubious conclusion, I fired off an Agency Level protest. Early the next morning, the CO called me with her attorney, Kt Specialist and maybe others in the room. She apologized and explained that somehow one sentence got dropped out of the J&A. The Agency needed the small requirement described in the J&A, about 2.5 FTE, but they needed it to be performed at 57 separate geographic locations concurrently.

I don't mean to imply that there was no impropriety in your situation, but many of the poor quality J&A's published at fbo probably aren't as far off-base as they first appear.

Human error happens when people are involved. As that Krazy KO sez, get in line. A lot of people have been wronged, or so they believe, and as long as the specific problem that led to the error is being looked at, the system is working the way it's supposed to.

Significantly, in your case, the Agency has made some gesture to you to acknowledge your complaint and to look at how to prevent the same error in the future. To the GAO, if an Agency takes timely corrective action, then GAO doesn't need to be involved, and monetary damages or costs are not appropriate. In my still evolving opinion, your protest may not be a slam dunk; and it must be dismissed as moot if the Agency takes timely corrective action.

GAO has awarded me costs twice, as I recall. In both cases, Agency counsel was embarrassed that the error I complained about was left uncorrected for months, while they instead fought to rebut my complaint. Only after GAO said that there might be something to my complaint was the matter taken seriously. So sometimes an Agency is not able, for whatever reason, to see their own errors. These protests were dismissed, even though they could have been considered "slam dunks." What's important is not getting a protest sustained; what's important is getting Agency errors corrected.

ON THE OTHER HAND, if you can show bad faith (impossible to show without 2 things,) then you're off to the races.

What's essential to show bad faith ?

#1. There must be actual bad faith; and

#2. You must have someone in the Agency who will testify to that fact.

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Props to Don Acquisition for a brilliant suggestion for a website that grades Contracting Offices. That looks like it could be a potential paradigm shifter, empowering Contractors in a heavily one-sided relationship / industry.

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[brian]

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After posting and then editing the above for half an hour, I finally did some out-of-the-box thinking on this.

Jon,

arrange for your client to give a capabilities briefing to the CO and the Requiring Activity.

If they are in a preference category, or could qualify for one, meet with the CO and explain how your client could perform a small set-aside requirement matched to their unique capabilities.

Right now you're fighting for your client to be included in an open competition, but I assure you that they would prefer to be the ones benefiting from a non-competitive or restricted competition acquisition.

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Also, encourage your client to reach out to the Small Biz Specialists in her/ his geographic area. Part of their job is to ensure the CO's know about the small businesses that are capable of performing these requirements.

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[bremen]

Here's an idea. Write an evaluation of the contracting office's performance from the perspective of a propspective offeror. Put it on a Web site called GPARS (Government Performance Assessment Reporting System) (You would have to create the Web site). Allow other contractors and prospective contractors to submit written assessments of their dealings with other contracting offices. You could evaluate the a particular contracting office on the basis of their record of complying with regulations in soliciting offers and awarding contracts, clarity of their solicitations, their history of reasonable and cooperative behavior, their record of integrity and business ethics, their promptness and clarity of responses to offeror inquiries, the promptness of responding to requests for equitable adjustments, etc. I would imagine that this type of information would be valuable to a prospective offeror deciding which contracts it would like to compete for. It might also be valuable to agency management who want to know how they are perceived by industry. You could sell some advertising to pay for the site.

I am serious.

I love the idea. As a Government KO it would allow me to get an outsiders perspective on potential employers.

[Guest Vern Edwards]

Here's an idea. Write an evaluation of the contracting office's performance from the perspective of a propspective offeror. Put it on a Web site called GPARS (Government Performance Assessment Reporting System) (You would have to create the Web site). Allow other contractors and prospective contractors to submit written assessments of their dealings with other contracting offices. You could evaluate the a particular contracting office on the basis of their record of complying with regulations in soliciting offers and awarding contracts, clarity of their solicitations, their history of reasonable and cooperative behavior, their record of integrity and business ethics, their promptness and clarity of responses to offeror inquiries, the promptness of responding to requests for equitable adjustments, etc. I would imagine that this type of information would be valuable to a prospective offeror deciding which contracts it would like to compete for. It might also be valuable to agency management who want to know how they are perceived by industry. You could sell some advertising to pay for the site.

I am serious.

The idea needs some work, but I like it.

[formerfed]

I've been referred to (in a Congressional request to GAO, no less) as a "serial protestor." A Congressional Staffer suggested that I should be fined for filing frivolous protests. GAO responded that they have not determined any of my protests, or anyone else's, to be frivolous, and to take such a task on (evaluating protests for frivolity) would be a far bigger waste of time than just handling all protests in their usual professional manner.

And has that helped or hurt your company's business? I certainly am not a marketing specialist but those I talk with say numerous protests hurt a company's long term revenue. Is it a case of winning the battle but losing the war?

[jvanhorne]

I started to say this yesterday I also haven't heard of any remedies like that either. I'm sure your client is just one of several companies qualified to compete. What's the remedy - give money to everyone that responds?

Actually when you dig into these situations agencies usually have a pretty good excuse why a recompetition acquisition got delayed. It can be for anything like other priorities overtook the recompetition needs, key agency personnel aren't available, the requirement is changing, or the agency is seeing how another requirement might impact this one. From your client's standpoint, none sound good. But it's a reality.

Actually no one responded here because there was no solicitation. Also, we just got the agency's stay over-ride and it looks like they are not claiming that there was a sole source determination. Of course, if you believe the over-ride, if the incumbent doesn't keep performing, it will be the end of civilization as we know it.

[jvanhorne]

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Significantly, in your case, the Agency has made some gesture to you to acknowledge your complaint and to look at how to prevent the same error in the future. To the GAO, if an Agency takes timely corrective action, then GAO doesn't need to be involved, and monetary damages or costs are not appropriate. . . . So sometimes an Agency is not able, for whatever reason, to see their own errors. These protests were dismissed, even though they could have been considered "slam dunks." What's important is not getting a protest sustained; what's important is getting Agency errors corrected.

I am interested in how substantively they commit to the corrective action. If feels like they are heading for another sole source award. Seems the incumbent has this real cool software that tracks stuff and we will all be in imminent peril if the agency isn't able to continue to use this software. My impression: like much old software, this is something that now could be replicated by a 10-year old on a laptop.

[Guest Vern Edwards]

The following comments are not directed at jvanhorn and are not a commentary on his case or practice.

I have known companies that protested almost every time they lost, convinced that the agencies had done wrong. They either rarely or never won the protest, and if they did win they did not ultimately get the contract. When you compete for a government contract and lose, it will be either because the agency preferred to do business with another firm or did not want to do business with you. Let me be frank--an agency that knows what it is doing can choose any firm they like for award and will not lose any protest filed against their decision. Frankly, an agency has to be run by blockheads to lose a protest, except in those rare instances in which the GAO or the Court of Federal Claims decided a case of first impression or sustained the protest based on a technicality that no one could have foreseen. In order for a company to be successful in the government market, it must offer something that the government wants more than the something offered by competitors. It all boils down to that. A firm might win a protest, but unless the agency is stupid, a successful protester probably won't go on to get the contract. It happens, but I think it's rare. A protest might, however, motivate an agency to reach some kind of favorable settlement.

Bottom line: In my opinion, protesting is a waste of money that would be better spent on product or service development or improvement and marketing. I have been around a long time. I have received protests. I have observed protests. I have studied protests. I have been hired to consult on protests. I wrote one protest. (We lost.) I have seen protests that disrupted agency acquisition operations for long periods of time. I have seen the GAO recommend replacement of the SSA. While I have seen many protests that were righteous, I cannot recall ever seeing one that ultimately worked out well for the protester, although I am sure that there have been a few. Maybe Jon can tell us of some.

Jon, tell Tim S. I said hello. If he is the Tim I think he is, we go back a ways, to one of the earliest protests I ever received. I wonder if he knows that Hank Hernandez is dead.

[formerfed]

Bottom line: In my opinion, protesting is a waste of money that would be better spent on product or service development or improvement and marketing

That is what just about everyone I talk with in industry that does marketing and business development says. I once heard this but I forget the source so I can't verify it - a study of several hundred of the largest government contracts awarded in one year showed that the winning companys spent something like 70% of their B&P costs before the solicitation got issued. In other words, they spent a lot of time getting to know the agency, the program, the specific need, what the agency looked for in the contractor, etc. so they were able to come up with the most favorable proposal.

[brian]

And has that helped or hurt your company's business? I certainly am not a marketing specialist but those I talk with say numerous protests hurt a company's long term revenue. Is it a case of winning the battle but losing the war?

Sometimes I forget that a couple of folks here aren't disgusted by my perceived abuse of the GAO Bid Protest Forum, if only because they aren't aware of it. In general, those who know, are.

Once an Infantryman, always an Infantryman. I believe that the universe, or at least warfare, revolves around the Infantry, and I left active duty more than 20 years ago.

It is my opinion that the employment of Mercenaries in the two major current wars is disrespectful of the sacrifices of all US military personnel, but is especially disrespectful of Infantrymen. Through decisions made by leaders who do not understand war and do not respect the military, this reliance on quasi-military armed forces reduces military service to a financial transaction and mocks those who serve out of devotion to their country.

Moral arguments aside, I assert that the Anti-Pinkerton Act, 5 USC 3108, and FAR 37.109 prohibit the employment of Mercenaries. Most of my protests were efforts to get the Comptroller General or the COFC to decide if my interpretation is correct. This is clearly outside the bounds of 4 CFR 21, which authorizes the GAO Bid Protest authority.

My name is known at the Army's in-house law firm, USALSA, and at JCC-I/A, where I am blacklisted, but not so much anywhere else.

This blacklisting impairs my ability to win contracts related to the efforts in Iraq and Afghanistan, through which I might have been able to help the top political leadership in our country make course corrections, such as winding down wars that make us less safe. But even without that stigma, I probably still would have been a failure at business.

Former Fed, your point is well taken.

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[jvanhorne]

I am interested in how substantively they commit to the corrective action. If feels like they are heading for another sole source award. Seems the incumbent has this real cool software that tracks stuff and we will all be in imminent peril if the agency isn't able to continue to use this software. My impression: like much old software, this is something that now could be replicated by a 10-year old on a laptop.

Well, the agency wanted a settlement agreement, so I added language that the release of claims regarding the award of the contract in question did not cover their failure to proceed with the competitive procurement they promised in a presolicitation notice published in FedBizOpps.

I also learned that the reimbursement of protest costs does not include the costs of negotiating a settlement of the protest. Something new every day.

[Don Mansfield]

Here's an idea. Write an evaluation of the contracting office's performance from the perspective of a propspective offeror. Put it on a Web site called GPARS (Government Performance Assessment Reporting System) (You would have to create the Web site). Allow other contractors and prospective contractors to submit written assessments of their dealings with other contracting offices. You could evaluate the a particular contracting office on the basis of their record of complying with regulations in soliciting offers and awarding contracts, clarity of their solicitations, their history of reasonable and cooperative behavior, their record of integrity and business ethics, their promptness and clarity of responses to offeror inquiries, the promptness of responding to requests for equitable adjustments, etc. I would imagine that this type of information would be valuable to a prospective offeror deciding which contracts it would like to compete for. It might also be valuable to agency management who want to know how they are perceived by industry. You could sell some advertising to pay for the site.

I am serious.

GPARS is here!

http://www.federalnewsradio.com/517/3811770/Yelp-like-ratings-system-coming-to-IT-procurements