One delivery order spawns a convoluted GSBCA protest ordeal

Sometimes a simple action can lead to a protest replete with complex legal twists and

The following saga involves a pair of protests at the General Services Administration
Board of Contract Appeals.

It all began last fall, when the Defense Information Systems Agency issued a delivery
order for a mainframe it wanted to buy through an existing, 3-year-old contract. The
circumstances of the contract were complicated by a settlement that resulted from a
protest of the initial award. As part of that settlement, DISA agreed to buy one computer
from the protesting vendor.

But after the agency issued its order for a mainframe last fall, the original protester
cried foul again. The company claimed that DISA violated the settlement agreement by
ordering the mainframe from another company. The vendor filed a new protest with GSBCA.

DISA argued the protest came after it had issued the order, received the mainframe,
signed off on the standard acceptance form and issued a check.

DISA got the board to dismiss the protest. The board concluded that, under the law,
because the computer had been ordered and delivered, GSBCA could presume the order was
valid. The board said the protesting vendor did not argue that this presumption was in
error or could be overcome.

But then the case took another turn. A second protester challenged the board's
assumption that the order was valid, noting that DISA had not shown that acceptance had
occurred. What's more, this second vendor claimed that modifying the contract to settle
the original protest resulted in an illegal sole-source contract to the protesting vendor.
The requirements for adequate competition had not been met, this protester contended.

The first protester lost its claim because the contract had been in place for several
years and it should have raised its complaint earlier, the board ruled.

GSBCA, however, refused to dismiss the second vendor's protest. The board noted that
this vendor was not aware of the earlier protest and the resulting contract modification.
The board is reviewing the vendor's claim now and expects to issue a decision later this

As GSBCA has stated on numerous past occasions, different facts can lead to different
results--even when they involve the same contract.

Bob Deller is director of Market research for Global Systems & Strategies in
Potomac, MD.

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