Bid Protests in the BRAC Era

Date: April 12, 2010

NCI, Inc., an IT services firm out of Reston, Virginia, recently received an $83.7 million BRAC task order award to support the Defense Information Systems Agency (DISA)'s relocation to Fort Meade, Maryland, a move that by law must be completed before September 15, 2011. The task order NCI won involves critical support of the relocation move of DISA's Command, Control, Communications, Computers, and Intelligence/Information Technology (or, in government contracting circles, C4I/IT) activities from Arlington, Virginia to Fort Meade. For those of you who are less familiar with DISA, it is a Combat Support Agency whose primary objective is to translate cutting edge information technology into U.S. competitive military advantage.

Needless to say, time is of the essence in BRAC relocation contracts generally and in particular, contracts involving the speedy and seamless relocation of military support programs such as DISA's C4I/IT. Under its new task order, NCI was to start work immediately upon receipt of the task order award to meet BRAC timeline mandates.

And then one of NCI's competitors filed a bid protest with the Government Accountability Office (GAO). Everything came to a halt.

A GAO bid protest is essentially an administrative lawsuit that challenges the legality of either (1) a solicitation prior to award of a contract, or (2) the contract award itself. If the protestor files its bid protest within certain time periods set forth in GAO's bid protest regulations, a bid protest of either type stops the procurement process in its tracks, because the rules require an automatic stay of contract performance pending resolution of the protest (usually a 100 day process at GAO). Section § 3553 of Competition In Contracting Act (CICA) provides that "if the Federal agency awarding the contract receives notice of a protest in accordance with this section . . . the contracting officer shall immediately direct the contractor to cease performance under the contract. . . . ." 31 U.S.C. § 3553(d)(3)(A)(ii). The same automatic stay applies if the contract has yet to be awarded. In that case, the agency may not award a contract until the protest is resolved.

A contracting agency may be able to override the automatic stay during a GAO bid protest only if it makes a "written finding that . . . performance of the contract is in the best interests of the United States; or . . . urgent and compelling circumstances that significantly affect interests of the United States will not permit waiting for a decision of the Comptroller General concerning the protest." Id. § 3553(3)(C)(i)(I) & (II). If the agency cannot demonstrate that an override of the automatic stay is warranted, everyone must wait until GAO renders a decision.

In the case of the bid protest against NCI's task order award, the impact of an automatic stay on NCI's deadline to relocate DISA's C4I/IT operations became a moot point since the protester (who remains unidentified) withdrew its protest on April 7, 2010. That means NCI will be able to start contract performance immediately, albeit after a nearly seven week delay.