Court rebuffs GSA motion on FedBizOpps protest

GSA asks court to rethink ruling on

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The General Services Administration has lost the latest round in the ongoing saga of revamping the Web portal.

U.S. Court of Federal Claims judge Susan Braden issued a decision earlier this week that denied the government’s request for consideration in three areas of Braden’s September 2006 ruling to appoint a new source selection authority (SSA) and re-evaluate the bids.

The continued delay has attracted the attention of one House member. Rep. Chris Van Hollen (D-Md.) sent a letter to GSA Administrator Lurita Doan Feb. 8 asking seven questions and expressing his concern over the program’s direction.

“I am concerned that FedBizOpps system is being put at risk,” Van Hollen’s letter stated. “Although I am concerned with GSA’s repeated inability to follow standard procurement regulations as well as its willingness to continue to litigate rather than follow the court’s order, I am most concerned about the impact that this three-year delay has had on the operations of FedBizOpps as well as the effect of budget cuts forced on the contractor currently operating FedBizOpps.”

In September, Braden concluded that GSA incorrectly calculated the bid from the winning vendor, Symplicity Corp. of Arlington, Va. GSA awarded Symplicity a $17.4 million contract that includes three base years and five one-year options in December after reevaluating bids. That followed a first protest by Development InfoStructure (Devis) Corp. of Arlington, Va., and Information Sciences Corp. of Silver Spring, Md.

ISC is a subcontractor to SAIC, which holds the prime contract to run FedBizOpps. When GSA recompeted the contract, it did so as a small business set-aside, and ISC bid as a prime contractor.

ISC protested the second award to Symplicity to the U.S. Federal Claims Court in January 2006.

This procurement has been ongoing since March 2004 when GSA first issued a request for proposals.

“We are pleased with the decision, and we are hopeful GSA will follow the judge’s order and appoint new SSA who is capable of doing the evaluation independent of past process,” said William Shook, ISC’s attorney, and a partner in the law firm of Kirkpatrick & Lockhart Preston Gates Ellis LLP. “We are back at the point where we were in September 2004, where we have to get a competitive range determination.”

Now that the court denied GSA’s request, the agency has a few options, Shook said. GSA could appeal the judge’s decision or move forward with the court’s order.

“I hope they would not appeal,” he said. “Judge Braden’s original decision was in September so in the five months since then GSA could have re-evaluated and re-awarded the contract rather than continue litigation.”

A GSA spokesman said, “All we can say at this point is that we're reviewing the decision now. It is still pretty early in the decision process.”

A Symplicity spokesman did not want to comment on the decision, and a spokesman for Devis could not be reached for comment.

In her decision, Braden said the court did not make a mistake in reaching its conclusion.

“[T]he evidence cited by the government fails to demonstrate manifest error in the court’s determination that the SSA failed adequately to document the exercise of independent judgment when Symplicity’s technical rating was increased from unacceptable to acceptable,” the redacted version of the judge’s decision reads.

The judge also said GSA’s admission of a mistake in calculating Symplicity’s proposed price further “substantiates the court’s conclusion that [ISC] and [Devis] were prejudiced by the contracting officer’s actions in this procurement.”

Justice Department attorneys had argued that GSA didn’t err in evaluating Symplicity’s price because it was not a flat fee, but was for over a certain time period and it did not damage the losing bidders.

“GSA must establish a new competitive range that comports with the requirements of the solicitation and the [Federal Acquisition Regulations],” the decision said. “Accordingly, GSA must reconsider the competitive range determination.”

Braden also said GSA must appoint a new source selection authority that should use existing technical and price evaluations to determine which proposals represent best value to the agency.

“It is time for someone at GSA and/or the Office of Management and Budget to take control of this program, put it back on track and be the responsible person for the most critical e-commerce system in U.S. government,” Shook said.


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