GSI lobs suit against $3B DISN contract
- By Bob Brewin
- Jul 28, 1996
Government Systems Inc. took its challenge of a $3 billion Defense Department communications integration and support contract to a federal court in Illinois last week, a month after filing a similar protest with the General Accounting Office.
GSI filed suit in federal district court in East St. Louis, which has jurisdiction over the Defense Information Technology Contracting Organization (DITCO) headquartered at Scott Air Force Base, Ill., the contracting agency for the procurement in question. In its latest suit, GSI has asked the court to prohibit Boeing Computer Services Inc. from starting work on the Defense Information Systems Network Support Services - Global contract until the GAO protest is resolved.
GAO has ruled that the Defense Information Systems Agency should put the DSSG program on hold until the GAO protest is resolved. However, on July 12, DISA decided to ignore GAO and proceed with the award to Boeing. That decision prompted GSI's federal court filing.
GSI said DOD's decision to start work under the DSSG contract could cause it "irreparable harm" because Boeing could perform so much work on the contract that even if GSI prevailed with its GAO protest, the oversight agency could decide the award to Boeing was a "fait accompli."
Additionally, GSI argued that DISA violated the intent of the Competition in Contracting Act by issuing a "written override decision" of the automatic stay imposed on performance by GAO because "in CICA, Congress expressly provided that, barring exceptional cases, once a timely post-award protest has been filed, a contract shall not be performed until that protest is resolved."
A telecommunications industry executive with experience in the federal market said that "finding that exception is not hard. All DISA has to do is wave the flag and invoke the national interest." According to the GSI court filing, that is exactly what DISA did in the written override of the automatic GAO stay.
Col. Marcia Tamblyn, DITCO's commander, stated that her July 12 override decision met "the best interests of the United States" legal threshold because DISA needed DSSG to support "U.S. forces in the Balkan area of operations." GSI found this odd because it holds a similar support contract with DISA and noted that on April 19 the agency stated, "GSI is the only contractor that has a possible plan to meet this requirement [DISA's full-time manning] in Bosnia."
Tamblyn also based her decision on the fact that the agency has another contract with GSI that is about to expire. GSI countered that this is an erroneous reading of the contract, which allows for an automatic 180-day extension. Tamblyn also argued that another DISA contact, held by an unspecified company, was about to expire, requiring the use of DSSG.
This reasoning, GSI argued, does not meet the legal threshold under CICA for overriding a stay of performance issued by GAO. Besides asking the court to overrule that decision, GSI also asked for a preliminary injunction against any further performance.
Carl Peckinpaugh, an attorney with the firm of Winston and Strawn, said that obtaining such an "injunction requires a very heavy burden. It is quite rare to get one, though they are occasionally entered."
The suit also alleged that Boeing "illegally gained inside information" about the contract by hiring Dennis Groh, former director of the DOD telecommunications procurement organization, and Susan Jimenez, former competition advocate for DISA. GSI did not identify Groh and Jimenez by name in the GAO protest, saying only that "DISA had made no inquiry into whether Boeing, its consultants or its proposed subcontractors suffered from personal or organizational conflicts of interest."
In its federal suit, GSI alleged "an illegal conflict of interest" that conferred "an unfair competitive advantage on Boeing in violation of the law."
GSI also charged that Boeing won DSSG because "it stacked the deck by using inside information. Boeing admitted...
Groh and...Jimenez were closely involved in Boeing's competitive response to the DSSG opportunity."
GSI officials declined to comment for this story.
"This contract has a lot of zeros on it. GSI has growth plans, and DSSG makes the difference between the company staying a minor player or joining the big leagues," said Warren Suss, a Jenkintown, Pa.-based telecommunications analyst.
DISA said its attorneys, working with the U.S. attorney for the southern district of Illinois, will seek dismissal of GSI's complaint. The agency said in a statement that "it is confident that the district court will uphold DISA's determination and findings that continued performance of the DSSG contract is necessary to support command, control and intelligence worldwide, pending resolution of GSI's protest at GAO."
A Boeing spokesman said the company has an official policy not to comment on matters in litigation.