HUNTSVILLE, Ala. — High-ranking U.S. Army officials pleaded for industry to halt filing protests on a nearly automatic basis over contract awards at the Association of the U.S. Army's Global Force Symposium this week.
Over many years, the service has grown to count on protests from losing companies after major contract awards, often padding schedules to account for the guaranteed 90-plus day delays that come when a program must stop moving forward as a decision is rendered.
And the source-selection process is often slowed as Army contracting officials try to cover all the bases to ensure the decision they make is protest-proof.
The Army is "working hard" to "reduce the requirement for protest, we are taking that obligation on us," Gen. Gus Perna, the head of Army Materiel Command, told an audience filled with military and industry representatives during a speech at the symposium on Monday.
But while the service will hold its contracting workforce accountable, "I ask that as you [industry] work through the process, that you don't bombard us with unnecessary protests," Perna said. "I need you to help self-assess, it cannot be on autopilot, protests are anchoring us down, just anchoring our capability to do other things."
Perna added there is no chance he will be able to increase the contracting workforce that currently handles protests while also keeping contracts moving on schedule.
"The key is to hold ourselves high to execute high standards, make sure we define the requirement, the selection, the criteria, and then make the unbiased selection that will impact readiness," he said.
Acting acquisition chief Steffanie Easter told Defense News in an interview that "there is no protest proof strategy," no matter how slow and methodically contracting officials move through the process.
Easter said she is "pushing back" on the idea contracting agents need to move slowly to avoid protests and instead is urging the Army to "do what we know is the right thing to do and we will deal with the protest when it comes."
"I will say that we are being very deliberate at making sure we are dotting our i's and crossing our t's, but I cannot allow it to slow us down and I have confidence in our system, that our contracting officers and our source-selection officials and our program managers, that they are well-trained and knowledgeable about what they are doing, and I will stand by them any day," she added.
In part, ongoing acquisition reform could help decrease the number of protests coming from losing bidders.
Easter said new efforts to think about acquisition across the entire life cycle of the program — from requirements to sustainment — will help make procurement decisions stronger and more defendable should a protest arise.
JLTV: A case study for procurement
The Joint Light Tactical Vehicle is a good example of such a holistic acquisition approach, and analysts have said the procurement and competitive strategy is being used as a case study for how to proceed with major acquisition programs going forward.
But that didn't stop Lockheed Martin from filing a protest with the Government Accountability Office in December 2015 following the Army's decision to award Oshkosh Defense a contract to build its Humvee replacement in August. A $6.7 billion low-rate initial production contract was at stake as well as $30 billion for the entire contract.
Lockheed then decided to sue the Army in the U.S. Court of Federal Claims before the GAO rendered a decision, which extended the protest period out farther. In February 2016, Lockheed withdrew the complaint.
At the same time as the JLTV protest, BAE Systems filed a protest over the Army’s decision to choose Northrop Grumman to build its Common Infrared Countermeasure for helicopters and General Dynamics Land Systems filed a protest over the Marine Corps’ award to BAE Systems and SAIC to build prototypes in a competition for its Amphibious Combat Vehicle.
Both protests were denied, but they did slow the programs by 90 days.
Even more recently, the firearms manufacturer Glock filed a protest last month over the Army’s decision to award a new pistol contract to competitor Sig Sauer.
The Army announced in January that it would replace the M9 Beretta, soldiers' sidearm for more than 30 years, with a modified Sig Sauer P320.
While still in the protest period, Sig Sauer is able to continue working on the program because Glock did not file a protest with the GAO within five days of receiving its debriefing from the government.
Due diligence shortcomings
More recently, Palantir filed a protest with the GAO and then with the U.S. Court of Federal Claims over the service’s Distributed Common Ground System — Army procurement strategy for its third variant of the intelligence analysis framework.
Palantir’s protest filed with the court in June 2016 claimed the service issued an unlawful procurement solicitation that shut the company’s commercial offering out of the competition despite repeated attempts to show the Army what it had to offer.
This time Palantir won. The court ordered the Army to do a more thorough analysis of commercially available options for its DCGS-A program, but didn’t define exactly how the Army should conduct the analysis or what would be considered a satisfactory level of market research.
On the DCGS-A protest, Easter said: "That was about market research and we did the market research, but we learned we did not document it at the level that we should have, so there is something to be learned from each of these instances."
The Army has appealed — in December 2016 — another U.S. Court of Federal Claims ruling to stop the service’s procurement of 16 LUH-72A Lakota helicopters, arguing the court overstepped its authority, misinterpreted government procurement terms and requirements, and improperly supplemented the record with outside information not relevant to making a decision.
AgustaWestland filed a protest in February 2016 that contended the Army’s decision to use the Lakota helicopter as a training helicopter overstepped the scope of the original contract with Airbus and the Army failed to develop an adequate plan for acquisition of a training helicopter that included shoddy market research from the start.
The court rendered its opinion in August 2016, issuing injunctive relief for AgustaWestland, meaning the Army could not move forward with its planned helicopter purchase.
The Defense Information Systems Agency also got dinged in December on another decision to award a contract to Leidos to produce the next iteration of the Army’s Advanced Field Artillery Tactical Data System, unseating long-time prime Raytheon.
Two companies that lost out in the competition, incumbent Raytheon and General Dynamics Mission Systems, protested the award in January.
Following the protests, the agency decided to walk back on its decision to award the contract to Leidos in order to amend the request for proposals to "more accurately describe" what the agency needs.
According to the GAO’s decision, the Pentagon agency may have discovered a conflict of interest, as the document states the agency plans to further evaluate if one existed.
Jen Judson is the land warfare reporter for Defense News. She has covered defense in the Washington area for 10 years. She was previously a reporter at Politico and Inside Defense. She won the National Press Club's best analytical reporting award in 2014 and was named the Defense Media Awards' best young defense journalist in 2018.