Following the news last week of several new protests being filed with the Court of Federal Claims, OrangeSlices had an opportunity to connect with Government Contracts and Technology Attorney and Subject Matter Expert Jim Dougherty to discuss what next steps and timing might look like for the future of this heavily competed and important Governmentwide Acquisition Contract (GWAC).
We summarize and paraphrase a few of our key takeaways below. There are few direct quotes here and this is our take on the situation based on what we heard.
What is driving this latest round of challenges? – It appears that a common thread amongst the new protestors is that all 6 challengers who filed with the courts were on the initial preliminary successful offeror list that was released in the Spring of 2023.
This is a pre-award protest, and It is reasonable to assume that, in light of the recent phased notification I and II announcements, this group may have been informed that they were taken out of the award pool and are now on the outside looking in, while hoping that the courts will remedy the issue. The protest documents are under seal, so the grounds for the new challenges have not been released publicly.
How does this impact the timing of the procurement? At least one of the protestors has asked for a preliminary injunction, and based on the news that NITAAC has made an extension, it is expected the agency is prepared to grant a voluntary stay in performance. Should this happen, no award announcement will take place until the active protests have been resolved.
If NITAAC does not agree to take corrective action to address some of the issues raised, Dougherty informed us that a typical case like this could take 5-6 months to resolve, although there is no actual deadline.
Without knowing the grounds for the protest, it is hard to know what action the agency will take. If NITAAC opts to (yet again) take corrective action, this case could be dismissed faster. But once the government takes any corrective action, a fresh set of protests can follow quickly (further elongating the process), and any changes can induce protests from additional challengers who disagree with the actions taken.
Once the agency is able to clear this current hurdle, what is next? NITAAC can now move forward and award the contract. However, once the award is finalized, the agency will then need to offer debriefs for those parties who request one. Said Dougherty, “Given the volume of interest in the procurement, this could lead to a new round of protests.”
According to Dougherty, the agency has taken the stance to date that they will not provide any pre-award debriefings to any disappointed offeror. Thus, they will “be obligated to provide debriefings to any disappointed contractors who request them, and because the agency made the decision to defer the debriefing dates to after the date of award, protests that are timely and filed after those debriefings at the GAO will need to be addressed.”
Will NITAAC leadership be able to button this up (improve transparency and rationale) in a way that will ensure this gets done? Only time will tell. What we do know is that the ride ahead for NITAAC and the CIO-SP4 bidders who are serving as passengers is expected to include a lot of turbulence, so keep your seat belts buckled.
OrangeSlices Odds of CIO-SP4 completion date:
- Before the end of the fiscal year (FY) 2024: Low
- Before the end of the calendar year (CY) 2024: Low
- By mid CY 2025: Medium
- By the end of FY 2025: High
Do you see this differently? Comment below.
More will be shared as it is made available.
About James “Jim” Dougherty
Jim is a Principal in the Tyson’s Corner, Virginia office of Offit Kurman P.C. where he is a member Governments Contracts practice group, with experience in all facets of government contracts law, including claims and bid protest litigation, as well as in-house experience as the General Counsel of several public-sector focused technology companies.
Armed with perspective gained doing government contract work for more than 25 years, to include as a former Army JAG, as a commissioner on the Armed Services Board of contract appeals, and as an in house resource to several technology firms, Jim is seasoned leader and resource for any firm seeking to identify a seasoned government contracts and technology attorney.
Thank you to Jim for taking the time to share his perspective and wisdom.
Connect with and follow Jim here
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You need to add an option that says “NITAAC cancels the CIO-SP4 solicitation and starts over – Medium to High probabilty”
Did NIH move the target line?
NITAAC like Stars III should award the contract to all compliant bidders.
Is there a cap on how many times NITAAC can extend this contract?