The Army is asking Congress for permission to punish companies that launch “frivolous” protests that routinely stall acquisition programs for months, according to the Army’s acting chief weapons buyer.
Protests often are valid, but many are knee-jerk reactions by companies when they lose a contract, Stephanie Easter, acting secretary of the Army for Acquisition, Logistics and Technology, said during a panel discussion on modernization at the Association of the U.S. Army’s annual expo in Washington, D.C.
Easter made a similar complaint regarding “frivolous protests” during her first public address to AUSA’s other annual symposium in Huntsville, Ala., earlier this year. The Army is working with Congress to hold contractors accountable when they formally disagree with an Army source selection, though it is not clear how the Army would gauge the merits of a particular protest.
“I don’t want to make light of this, because there are some times when a protest is very valid and warranted,” Easter said on Monday. “But there are a lot of times when they are not. And they can be perceived, at least from my seat, as just a way to slow things down.”
“So we are working on having discussions with [Capitol] Hill staffers and others about getting some language in that basically holds contractors accountable for when they lodge a protest that is not upheld, so that they can be held accountable for some of the cost and there would be some penalty for doing it,” Easter added.
Protests are made by losing contractors to the Government Accountability Office (GAO), which then weighs the protest justification for 100 days before either accepting or dismissing the case. If GAO denies the protest, the company has the option of appealing the decision to the U.S. Court of Federal Claims, in effect suing the government for denying them the contract.
When GAO denies or dismisses a protest, the acquisition program has in effect been delayed for three months with no change to the Army’s original decision. The chosen contractor must halt work during the 100-day protest period.
The Army’s XM17 Modular Handgun System was delayed 100 days while Glock Inc., protested the decision to award Sig Sauer the $580 million contract. GAO denied Glock’s protest, allowing production to resume in time to field the first handguns next month.
Lockheed Martin [LMT] took things step farther when it lost the $6.7 billion Joint Light Tactical Vehicle (JLTV) contract to Oshkosh Corp.‘s [OSK] defense unit in 2016. Before the 100-day protest period ended, Lockheed filed suit in federal claims court then voluntarily withdrew the suit when it became clear the judge presiding over the case would not rule in its favor. The process ultimately halted JLTV production for five months.
Easter said the basic problem is the ease with which contractors can launch protests.
“All it takes is pushing a button on a computer,” she said.
“We have to get out of that mode of operations, because it’s not helping us at all in what we’re trying to do, which is to get equipment into the hands of our soldiers as soon as possible,” Easter said.