The Government Accountability Office sustained 93 legal challenges to National Institutes of Health’s embattled solicitation, CIO-SP4, concluding that the agency “unreasonably failed” to advance proposals past the first phase on their evaluation.
In a Thursday statement, managing associate general counsel for procurement law at GAO Kenneth E. Patton said the agency’s decision to not advance those proposals was “flawed”, citing NIH’s inability to show that it both reasonably evaluated phase one proposals and determined which would move on to the next stages of the competition.
“GAO recommended that the agency reevaluate proposals consistent with the decision, and make new determinations of which proposals advance past phase 1 of the competition based on the results of these new evaluations,” Patton said, echoing previous statements from the organization.
Patton also said the GAO found the agency “unreasonably evaluated specific aspects” of a phase one proposal from Sky Solutions LLC. GAO denied remaining arguments the protesters raised, which included challenges to other aspects of the evaluations and untimely challenges, he said.
The decision was issued under a protective order because it “may contain proprietary and source selection sensitive information,” according to Patton. It addressed protests by entities represented by outside counsel who were eligible for a protective order. Protests filed by entities not represented by counsel will be addressed in a separate, forthcoming decision, Patton added.
CIO-SP4 is the fourth iteration of a contract vehicle for acquiring commoditized IT products and specialized services that has been dogged by pre-award protests since the agency first requested proposals in May 2021. The CIO-SP4 vehicle has a $50 billion ceiling.
Entities seeking inclusion in National Institutes of Health Information Technology Acquisition and Assessment Center (NITAAC)’s 10-year solicitation have made multiple challenges through bid protests over the last two years. Those challenges have focused on the process and criteria by which the awarding agency was using to select awardees. They’ve been both dismissed and sustained, as the agency pushes forward with the solicitation.
In March, the GAO dismissed a round of bid protests after the agency agreed to voluntary corrective action to make a new phase one determination on highest rated offerors. GAO previously dismissed 117 complaints in November 2022 over the use of a points based scoring system used to analyze prior performance of the entities bidding. The agency agreed to voluntary corrective action in that case as well.
Both of those decisions came after GAO partially sustained a pre-award protest arguing the procurement unfairly disadvantaged large companies in mentor-protégé arrangements in November 2021.
Commenting on the bid protest decisions, founder of federal procurement consultancy ProcureLinx, Mark Hijar, said: “This is a sign, to me, that they have some very serious retooling to do before they move to the next phase of evaluation. And for this to happen at this late date is not a good sign.”
Hijar, who has worked with contractors who were awardees under past iterations of the vehicle, said he’ll be watching how the agency addresses the recommendation efficiently “without materially changing the evaluation criteria that were originally provided.”
Editor’s note, 6/29/23: This story was updated to add further context about prior CIO-SP4 bid protests and to include comment from ProcureLinx.
Editor’s note, 7/13/23: This story was updated to correct the number of protests sustained.