If you follow Federal Government contracting, you must be aware that protests have hit a majority of contract vehicles released in a couple of years. NITAAC’s CIO-SP4, GSA’s Polaris, Department of Commerce’s CATTS, Department of Health’s MQS2-NG, GSA’s OASIS+, and many others are a few examples of the contracts that have been affected. The surge in the protests reflects a deeper undercurrent of dissatisfaction and a demand for accountability and transparency within the acquisition process.
According to the U.S. Government Accountability Office (GAO), “A bid protest is a challenge to the award or proposed award of a contract for the procurement of goods and services or a challenge to the terms of a solicitation for such a contract.”?
A bid protest is a legal challenge to the award of a government contract. The protest is usually filed by a bidder who believes that the procurement process was not carried out in accordance with the law or that the winning bidder was awarded the contract based on factors other than the lowest price or best technical solution.?
Bidding for large contracts is already resource-draining and time-intensive, with teams working tirelessly to provide a quality and compliant response. Due to these protests, the offerors have to re-group and re-work the updated guidelines. In this article, we will be discussing what happened with some major contract vehicles, the implications for small business contractors, and what you should do as a small business contractor if you plan to bid on a large contract vehicle.
What happened to the major contract vehicles:
- CIO-SP4: The Chief Information Officer-Solutions and Partners 4 (CIO-SP4) program has been a highly anticipated successor of CIO-SP3 from the National Institute of Health Information Technology Acquisition and Assessment Center (NITAAC). This program’s journey has been quite a long one. There have been 350 protests and supplemental protests filed with GAO against the CIO-SP4 acquisition. The contractors protested on the evaluation criteria, evaluation factors for Phase 1, undisclosed and unduly determinations, corrective actions to the protests, and so on. But based on the NITAAC’s press release, they have mentioned that GAO sustained a total of three allegations. NITAAC has been very optimistic and has remarked that they are steadfastly working to bring CIO-SP4 to market. NITAAC has said it expects to make awards for CIO-SP4 before CIO-SP3 ends on April 29, 2024.
- GSA Polaris: Polaris is GSA’s small business GWAC, which Federal Agencies will use to procure customized IT solutions from qualified small businesses in various socioeconomic categories. Polaris was released on March 25, 2022, and there have been multiple protests on this GWAC. Protests were lodged on multiple grounds that included violation of joint venture regulations, not evaluating price at IDIQ level, improperly barring contractors from submitting proposals on SB pool due to a misrepresentation of an SBA regulation and so on. One of the major protest decisions was received by GSA from the Court of Federal Claims, and GSA updated the bidders on May 01, 2023, that they are currently reviewing the decision and working on the path forward. That decision also prohibited further proposal evaluation and award. In response to this decision, GSA issued certain amendments. The latest update is that the GSA released Amendment 009 on September 29, 2023, in response to the SH Synergy, LLC and VCH Partners, LLC v. The United States, the Court of Federal Claims decision.
- OASIS+: GSA’s OASIS+ final RFP culminated thousands of comments and feedback from the industry and finally closed the submission date on 20th October 2023 after multiple amendments. On October 10, 2023, GSA notified that proposals for all six OASIS+ RFPs are due no later than 4:00 p.m. Eastern Time (ET) on October 20, 2023, and the system will close down promptly at 4 p.m. ET on October 20, 2023, and no late proposals will be accepted. Even though the OASIS+ contract couldn’t avoid the protests, Boston Consulting Group Federal has already filed a complaint with the Government Accountability Office on Aug. 28 over the terms of the solicitation. BCG Federal has said that the GSA’s requirements are not in line with FAR Part 15 and GSA should not be asking contractors to provide a cost breakdown on fixed prices.
- MQS2-NG: Defense Health Agency’s Medical Q Coded Support and Services Next Generation (MQS2-NG) is a $7.5 Billion IQIQ. The scope of this IDIQ is to provide professional medical, dental, and medical support services for Department of Defense Military/Dental Treatment facilities. Multiple amendments were issued to this IDIQ after it was released. The brakes were hit on the results when protests were filed in the GAO. GAO’s decision is projected to be out by 25th January 2024.?
- CATTS: The Department of Commerce’s CATTS is a $1.5 Billion contract that was first awarded to 15 contractors on September 14, 2023. Since then, the contract has been hit by protests multiple times, and currently, the award has been protested at the U.S. Court of Federal Claims and is docketed at Case Number 1:23-cv-01112-EHM. The main concerns for protesting contractors are that the Department misevaluated proposals and did not adhere to the criteria listed in the solicitation.?
Implications for Small Business Contractors:
For small business contractors, there are multiple implications due to protests on these contracts:
- Increased Scrutiny: As the protests become more common, there is a likely chance that contractors will find themselves under increased scrutiny. From bid submissions to project execution, it can potentially be subjected to reviews. Hence, the higher level of scrutiny demands an equal level of due diligence from contractors throughout the acquisition process.
- Resource Drain: Bidding on large contract vehicles is a resource-draining effort, especially for small business contractors. Hence, if you are bidding for such a contract, it is necessary to use your resources judiciously, as the effort might extend beyond the first submission date. Contractors should prepare themselves and decide whether they want to undertake the effort. If you are a small business contractor who wants to participate in the protest after an unfavorable bid, it demands significant resources—financial, time, and human capital. Contractors must weigh the potential benefits against the costs involved in pursuing or defending against a protest.?
- Innovation and Risk Taking: The fear of protests may lead contractors to become more risk-averse, potentially reducing the innovation coming from the contractors. Contractors can become increasingly hesitant to put innovative ideas on the table or take bare minimum risks if they fear the protests. Hence, striking the right balance between innovation and risk mitigation becomes challenging
- Longer Procurement Timelines: Protests can significantly lengthen the acquisition process and stretch the final award's timeline beyond the first submission date. Contractors operating in this environment need to plan for such extended timelines and ensure they have the operational and financial resources to weather the delay.
- Implication on Current and Upcoming Contract Vehicles: If there is a major ruling or a change after the protest, it is likely to have an impact on the upcoming contract vehicles as well. When the Court of Federal Claims ruled on April 21, 2023, that GSA’s interpretation of Section 876 of the 2018 Defense Authorization was too broad as applied to the Polaris small business GWAC. The decision not only forced GSA to pause its efforts on Polaris but also made a significant change to its strategy for OASIS+,? the follow-on multiple award contract for professional services.
Contractors must be prepared and, hence, develop strategies to navigate the protest storm effectively. Contractors should prioritize thorough and transparent documentation. Contractors should continuously communicate with government agencies via industry days, market research, and other mechanisms to provide their suggestions and comments to ensure their issues are well heard. Contractors must ensure strict compliance with instructions and seek legal advice if required. Our team at iQuasar is committed to providing compliant responses to the bids. We have expertise working with large contract vehicles like CIO-SP4, POLARIS, OASIS+, CATTS, and others. We track all the guidelines provided by the agencies and ensure the proposal response aligns with them.
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