• Joshua Duvall

GAO Protest Provides Cautionary Reminder on Incumbent Transition Plans

A recent Government Accountability Office ("GAO") bid protest decision provides a cautionary reminder for incumbent contractors and the notion that their transition plans should be viewed as a strength during evaluations (i.e., no risk because of incumbent status). As shown below, that belief may not always materialize during evaluations, so beware.


The protest of American Electronics, Inc., B-419659,B-419659.2, May 25, 2021, 2021 CPD ¶ ___ involved a post-award challenge to the Naval Air Systems Command's award for various technical, engineering, and management support services for the Air Traffic Control Systems Division in support of the Navy and other Department of Defense programs.


The request for proposals ("RFP") provided that an award would be made to the proposal that was the most advantageous to the government, with evaluations based on three factors (descending order) technical, past performance, and price. [1] The technical factor included three subfactors (descending order): understanding of the work/sample tasks, workforce, and management plan. Relevant here, under the management plan, offerors were required to submit a transition plan.


Following evaluations, both offerors were rated “outstanding” for the first two technical subfactors; under the management subfactor, the protester was rated “good” and the awardee was rated “outstanding." The protester and the awardee also received the same overall rating for both the technical and past performance factors, but the agency awarded the contract to the awardee, in part, because it "offer[ed] a slight technical advantage as well as a 4.23% cost savings over [the protester].”


Following a debriefing, the protester filed its protest challenging, among other things, the agency's failure to give it a strength for its transition plan.


In its protest, the protester argued that the agency failed to give it a strength for its transition plan. Specifically, the protester believed that it should have received a strength because, as the incumbent, “[i]t had no transition risk at all” and argued that “[t]he failure to recognize this strength [was] inconsistent with the solicitation requirements.” The agency argued, on the other hand, that its evaluation was reasonable and consistent with the terms of the RFP.


Specifically, the agency contended that the "solicitation requirements changed 'significantly' from the prior contract, and that these 'significant changes yield inherent transition risk, even for the incumbent.'" Additionally, the technical evaluation team lead explained that some of the follow-on requirements were entirely rewritten, the contractor's role in schedule management changed (significantly more deliverables), and that there were significant labor category changes. As a result, the agency "did not find that [the protester's] incumbent status would be advantageous to the Navy during contract performance."


Ultimately, GAO denied this protest ground after concluding that the agency's evaluation was reasonable. Moreover, GAO provided another reminder for incumbents, noting that "there is no requirement that an incumbent be given extra credit for its status as an incumbent." [2]


Takeaway


This protest serves as a cautionary reminder for incumbent contractors: where an RFP requires offerors to submit transition plans, incumbents should be mindful of any expanded or new RFP requirements and how those might impact its own transition into the follow-on contract. Lastly, given the stiff competition for government contracts, incumbents should also heed the notion that they are not given "extra credit" for simply being the incumbent.


__________


[1] The RFP was issued to woman-owned small business holders of the Navy's SeaPort NxG IDIQ contract.


[2] See FFLPro, LLC, B‑411427.2, Sept. 22, 2015, 2015 CPD ¶ 289 at 6; see also, e.g., Integral Consulting Servs., Inc., B‑415292.2, B‑415292.3, May 7, 2018, 2018 CPD ¶ 170 at 6-8 (denying protest where the protester challenged the agency’s consideration of risk in its transition plan and argued that it was entitled to additional strengths based on its incumbency).


. . .


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