Editor's Note: This article was originally published on Sept. 10, 2014.
Bid protests continue to keep parts of the Enterprise Acquisition Gateway for Leading Edge Solutions II contract grounded, though adjudicators and the Homeland Security Department have resolved numerous complaints in other areas over the last 18 months.
Seven of the $22 billion contract vehicle's nine competitive tracks are open for business, accounting for up to $64 million in task orders awarded so far in all three of the contract's functional categories. The contract is DHS' internal strategic sourcing vehicle for information technology purchases.
But DHS still has not had an official kickoff for the largest track, FC1 unrestricted, which grew from 15 contractors at initial awards in September to 68 in May, after multiple protests prompted the department to reconsider some of its decisions. The other unresolved track, with 16 companies, is FC1 8(a) for socially and economically disadvantaged small businesses.
"The delays are due to some of the challenges we've faced," said Dan Clever, DHS' deputy chief procurement officer. "As we complete the procurement process on those two remaining competitions, you'll see additional workload being passed through EAGLE II, but that has, to a degree, slowed down usage."
Clever said he does not know how much longer the remaining protests, pending before the Government Accountability Office, and possibly DHS itself, would take to resolve. "The important thing for us is to make sure the protestors are heard fairly," he said.
The competitor pool is much larger in FC1 with 110 companies in all — 68 large and 42 small — able to compete for task orders to design, develop and integrate systems and software. By contrast, only 26 awardees are in FC2 — for program management and other support services — and 14 in FC3 for independent verification and validation.
Roger Waldron, president of the Coalition for Government Procurement, said DHS should market the contract internally to counteract the effect of the delays. But he also questioned whether there are too many similar, duplicative contract vehicles. "We just think there are too many of these IDIQ contracts that cover the same stuff," he said. "Do we need all these in the long run?"
"The way that functional category 1 has played out was a little surprising to some, maybe less surprising to others and sort of disappointing to many," said Brian Baker, teaming coordinator for Ambit Group in Reston, Virginia, which received an FC2 small business award in May 2013. "Folks were looking to get on that short list and that short list got very much longer in a hurry."
Indeed, there is a perception that DHS gave in and let all companies win after protests in FC1 unrestricted. "I understand the perception," Clever said. "Without getting into the details of corrective action we've taken with regard to previous protests in the courts, we have analyzed some of the evaluations that were brought to our attention, and resulted in corrective action taken. Our goal is to be as fair and as transparent as we possibly can and that's why you saw the change."
"We recognize [DHS] worked very hard and had some difficult decisions to make," said Suzanne Petrie Liscouski, vice president of federal civilian agencies for NCI Information Systems headquartered in Reston, Virginia, one of the original 15 FC1 unrestricted awardees. "Competition will be tough but we have what it takes. We've known it since the beginning and we are looking forward."
For its part, GAO, which adjudicates bid protests, had only one EAGLE II protest still pending before it, as of early August. Z&A Infotek Corp. of Parsippany, N.J., an 8(a) company, filed that protest on July 29, and GAO has until Nov. 6 to address it.
GAO issued decisions on the merits — all denials — in only seven EAGLE II protests between February 2013 and June 2014. The seven decisions included protests by both small and large businesses in all three functional categories.
Generally, GAO issues decisions on the merits of bid protests in only about 20 percent of cases filed each year, said Ralph White, managing associate general counsel. In roughly 40 percent of protests, the case stops short of a decision on the merits because the agency decides to take corrective action, rather than litigating the dispute. Other cases are resolved through alternative dispute resolution, or withdrawn.
The question of whether DHS fairly evaluated and rated a company's corporate experience is what DHS considers the most important non-price factor that surfaced in the denied protests. Others considerations include price, past performance and the bidder's plan to involve small business. In some cases, protestors claimed that DHS misevaluated awardees' price or past performance.
For example, in one case, the protestor argued that an awardee's price was too low, but GAO decided that the department reasonably determined the protestor's proposal was not worth the higher price it was asking compared to similarly rated competing proposals.
Companies don't necessarily get a "do-over" when they protest to GAO.
"In reviewing an agency's evaluation of proposals and source selection decision, it is not our role to reevaluate submissions; rather, we examine the supporting record to determine whether the decision was reasonable, consistent with the stated evaluation criteria, and adequately documented," GAO said.
Future EAGLE II competitions could trigger further protests, but companies can only protest task order awards of $10 million or more to GAO.
The U.S. Court of Federal Claims also denied an EAGLE II protest, stating in May that DHS acted reasonably when it determined that Business Integra's proposal was ineligible for an award. Business Integra Inc., an 8(a) firm in Bethesda, Md., took its case to the Federal Claims Court after GAO denied its protest, centered on omitted labor rates.