Does the Court of Federal Claims give Alliant 2 protestors more hope than GAO?

The battle for the next great IT services governmentwide acquisition contract took  a bit of an unusual turn in early December when Obxtek Inc. filed a protest of the Alliant 2 awards in the Court of Federal Claims.

While Obxtek’s grounds for protest are unclear — the vendor asked the court to keep most of the specifics about the record under protective seal — we do know that the company was unhappy with the General Services Administration’s decision not to evaluate the price or technical proposals of those companies that didn’t make the initial self-scored cut.

“In accordance with the terms of the solicitation, GSA fully evaluated only those proposals with the highest final scores. GSA awarded contracts to 61 offerors on Nov. 17, 2017. There were 109 unsuccessful offerors,” Obxtek’s lawyers wrote in court documents. “In addition to the 61 offerors awarded a contract, GSA conducted a full technical evaluation, but not a full price evaluation, of the proposals of 10 unsuccessful offerors. GSA did not conduct a full technical evaluation or a full price evaluation of 99 unsuccessful offers.”

At the same time, another protestor, the Centech Group, also moved its protest from the Government Accountability Office to the Court of Federal Claims as GAO decided its case was similar to Obxtek’s.

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GSA awarded 61 companies a spot on the $50 billion Alliant 2 GWAC on Nov. 17.  Less than 10 days later, five companies filed bid protests with GAO putting the contract on hold for at most 100 days. Through Obxtek’s filling, we also learned another vendor has filed an agency-level protest of the award bringing the total of complaints against the Alliant 2 awards to eight.

The decision by these two companies to file with the Court of Federal Claims could delay the decision further as the court doesn’t have the same 100 day limit as GAO.

A GSA spokeswoman declined to comment on pending litigation, but did confirm the stay of the contract remains in place.

The reasons for going to the Court of Federal Claims vary according to federal procurement attorneys, and the court doesn’t necessarily guarantee a better outcome for protestors.

Barbara Kinosky, managing partner of Centre Law and Consulting LLC, said many times vendors file with the CFC because they missed the GAO’s deadline of 10 days after “the basis for the protest is known or should have been known, whichever is earlier.” And at the same time, some believe the CFC offers a different type of impartiality.

“As to fairness and benefits of choosing one over the other; many perceive the court as more willing to dive more into the merits of the claim and discovery procedures could give vendors more information to support their claims,” Kinosky said in an email to Federal News Radio. “The opportunity to depose the contracting officer has many protestors rubbing their hands with glee.”

David Yang, a partner with Blank Rome LLP, said the court forces the agency defendant to produce more details about their decision.

“The biggest pro at the court is that protesters get the full record as a matter of right, whereas at GAO, many agencies will only produce those portions of the record that relate to the allegations in the protest,” Yang said in an email to Federal News Radio. “The piecemeal approach at GAO handicaps protesters from reviewing the full record and constrains their ability to make full arguments or to raise supplemental arguments — which is why agencies use this tactic. The automatic production of the full record at the court bypasses this waste and allows the parties to focus on the merits instead of fighting over document productions.”

Neither Yang nor Kinosky said vendors are more likely to win in the Court of Federal Claims versus GAO.

While Kinosky said companies have a higher win rate at GAO, both venues do not notably differ in their interpretations of procurement law.

Yang added vendors must climb the same large hill before both GAO and CFC as long as the agency’s award decision is reasonable and supported by the record.

“There is not a clear substantive difference in standards between the two forums. However, in closer cases, our experience has been that the court may more likely side with the protester whereas GAO is more likely to defer to the agency,” he said. “As for fairness, both forums do their best, but GAO is significantly more taxed in case load than the court, so GAO perhaps has less time to dig into the record or consider arguments as fully as the court. This doesn’t mean that GAO takes short cuts but GAO’s reasoning/analysis isn’t always as sharp as the court, as demonstrated by the level of detail of the decisions issued by GAO and those issued by the court.”

The one central issue to all of this is GAO already sided with GSA on four pre-award protests around the use of the self-scoring system where price evaluation is a minor factor.

In January 2017, GAO ruled there was nothing improper about agency’s use price as a nominal evaluation factor. The agency also said the use of “point scores” as an evaluation system also was appropriate.

“As explained by the agency, this procurement does not involve a tradeoff and the agency’s price evaluation will consist of determining the fairness and reasonableness of multiple aspects of the highest rated offerors’ proposed rates,” GAO stated in January 2017.

So in the end what does this all mean? First off, GSA will not open the Alliant 2 contract for business until mid-2018, which is just fine as the current Alliant contract expires in 2019.

Second and depending how the initial rounds of discovery goes, it wouldn’t be surprising for GSA to reopen the evaluation process and let most or all bidders on the contract. GSA Administrator Emily Murphy said many times one of her goals is to ensure competition at the task order level rather than the contract award level. So giving all 109 or a larger number than 61 vendors a license to hunt under Alliant 2 isn’t necessarily out of the question.

Finally, because of GAO’s previous ruling, these protests could be dismissed fairly quickly as the evaluation system and the decision by GSA not to use price as a major evaluation factor could quickly put these protests to rest.

Read more of the Reporter’s Notebook.