By Ann Roosevelt
After a final argument by its attorneys, BAE Systems now awaits a decision by Dec. 14 from the Government Accountability Office (GAO) on its protest of the Army’s award of the Family of Medium Tactical Vehicles (FMTV) to Oshkosh Corp. [OSK].
GAO Nov. 9 and 10 held hearings on the protest of the FMTV award, calling Army witnesses.
Under the formal protest process, GAO must make a decision by Dec. 14.
Oshkosh was awarded the competitive rebuy in late August, with BAE and Navistar International filing protests soon thereafter (Defense Daily, Aug. 28, Sept.9, 17, Oct. 22). Broadly; BAE contends the Army’s source selection process was flawed.
As a result of that hearing, “parties are allowed basically to state their final position–like a final argument,” Al Crews, vice president of Contracts and Legal, Global Tactical Systems, BAE, said in a teleconference yesterday. “Our attorneys reiterated our position, not really adding anything new.”
Dennis Morris, president of Global Tactical Systems, BAE, said: “Although we cannot speculate on the hearing itself, we believe it validates the significant issues that we’ve raised about the procurement process. Typically, a GAO hearing is held when there’s insufficient or conflicting factual evidence on the record that precludes the GAO’s hearing attorney from making a decision based solely on the agency’s response–the agency response to the protest.”
Despite the protest, it is unlikely GAO will move beyond its normal 100-day protest process. Even the hotly contested Air Force tanker protest, which was larger and had more issues, was completed within 100 days, Crews said.
BAE rarely protests, company officials have stated several times. For example, Morris said BAE had bid on and lost the Mine-Resistant Armor Protected (MRAP) All Terrain Vehicle program to Oshkosh, and did not protest.
Additionally, a heavily redacted version of BAE’s second supplemental protest was released this week.
All parties to the protest, GAO, the Army, Navistar International and Oshkosh, agreed to release the protest in its redacted version, which includes much of what BAE’s lawyers said about Oshkosh’s winning proposal.
Morris said the company believes the protest offers insight into how a best-value objective for the competition was “disregarded.”
The protest uses the Army’s own report to GAO to bolster its protest, the second supplemental protest states:
“The Agency Report confirms that the Army unreasonably transformed what was supposed to be a “best value” competition into a lowest-price, technically acceptable bidding war. It did so by (redacted) and dismissing (redacted) between the offerors, which in the Army’s view made Oshkosh’s proposed price of $3 billion determinative. By this approach, the Army failed to recognize (redacted) in Oshkosh’s proposal–including at least one (redacted) made no effort to qualitatively assess the varying degrees of risk associated with the offerors’ proposals; (redacted) BAE Systems’ proposal in the (redacted) area in violation of the RFP and neglected to perform any meaningful assessment of whether Oshkosh could realistically perform at its extremely low price.”
Chris Chambers, vice president and general manager for Global Tactical Systems programs, said some of the Oshkosh pricing was “unrealistic.” Additionally, the Oshkosh proposal was in the “neighborhood of 30 percent” below the current FMTV cost, while not revealing the cost the company offered in its proposal.
BAE is not protesting frivolously. Crews said protests are “extremely expensive, time consuming and they divert a lot of resources.” No matter the outcome of the protest, the money cannot be recovered. “This is money that’s coming directly from our bottom line.”