NASA goes its own way, rankling GAO and IG

Space agency moves ahead with software contract after promising to reopen bids

NASA has ignored its own promises to the Government Accountability Office to remedy a protested contract, which could jeopardize its long-term relationship with the watchdog agency and damage agency officials' credibility with internal oversight authorities.

It also could hurt GAO's reputation for bid protest decisions, forcing unhappy vendors to take their complaints to the Court of Federal Claims. The latest conflict stems from a recent NASA inspector general's pointed criticism of how the space agency handled a procurement for mechanical computer-aided design and data management software last year, particularly its failure to meet promises made to GAO after a protest was filed.

Agencies rarely ignore GAO recommendations, and when they do, they have to justify their decision to Congress. But in this case, NASA not only did not follow through on its promise, it didn't notify lawmakers of its decision to move forward, either.

'This new information may cause the protest to be reopened,' said Michael Golden, GAO's managing associate general counsel. 'In any event, not notifying GAO could harm NASA's credibility and expose the agency to increased risk in any future litigation.'

Golden said GAO obviously would be concerned if an agency misrepresented its intentions regarding resolution of a protest.

'This is an unusual situation where, apparently, the corrective action wasn't followed through on. We rely on the agency's representations in these situations. I don't have statistics, but this looks like a situation we haven't had before,' Golden said. 'Our experience is that the corrective action is followed through on. Otherwise, obviously, the system isn't going to work.'

Unsuccessful bidders claimed NASA was 'attempting to establish the [mechanical CAD] and data management products of one vendor ... as the de facto NASA standard without an agencywide technical assessment and analysis to justify and support this standardization.' The protesters also claimed NASA violated procurement regulations.

Complaints received by the IG's office, which triggered the inquiry, also alleged the software used could jeopardize NASA's mission, but a spokeswoman for the IG's office said the office did not address that claim.

Because NASA had volunteered to take corrective action, including issuing a new request for quotation, GAO dismissed the protest in November.

Not only did NASA fail to reissue the solicitation, it has been proceeding with plans for a long-term renewal of software licenses with the company that won the contract.

NASA declined to explain why it did not follow through on its promises to GAO. And when the IG's office recommended that NASA notify GAO of its failure to follow through, the space agency seemed to brush off the suggestion.

NASA's 'comments in response to this recommendation stated that 'in the absence of an open bid protest, notification to the [GAO] would be an academic matter' and that 'the GAO does not consider academic matters,' ' a memo from the IG stated.

The saga began in late August 2005, when NASA issued a request for quotation, soliciting bids to provide 355 mechanical computer-aided design and data management software licenses, along with technical support services. Just five weeks later, on Sept. 29, the agency awarded a $5.2 million contract to Parametric Technology Corp. of Needham, Mass.

Two losing bidders'UGS Corp. of Plano, Texas, and ESCgov Inc. of McLean, Va.'filed protests with GAO.

The NASA IG's memo summarized the allegations:
  • NASA failed to provide material answers to questions to all bidders.

  • It improperly conducted a negotiated procurement using procedures that did not comply with competition requirements.

  • It improperly waived several mandatory requirements of the solicitation in awarding the delivery order to PTC.

  • It failed to accurately describe its requirements.

  • It violated requirements of competitive procurement by improperly conducting what was, in effect, a sole-source procurement.

  • It improperly purchased non-Federal Supply Schedule items under an FSS contract.

After the protests were filed, a senior agency attorney'whose name is redacted'acknowledged in a letter to GAO that, 'there were some inconsistencies in the procurement process of the MCAD contract. Therefore, NASA does not intend to defend the current protests. It is NASA's intention to take corrective action. ...'
Based on that assurance, GAO dismissed the protest.

'Specifically, NASA intends to issue a new solicitation after a thorough review of the agency's requirements,' GAO said in its Nov. 10 decision to close the matter.

But the inquiry by the IG's office determined that once GAO dismissed the protest, rather than moving to undertake a new solicitation, officials at Johnson Space Center in Houston in February 2006 drafted a 'Justification for Other Than Full and Open Competition' that proposed continuing renewal of PTC seat licenses on a noncompetitive basis for up to five more years. In fact, the agency has now installed 351 of the 355 seats covered by the original solicitation.

NASA also failed to undertake any comprehensive review of MCAD requirements throughout the agency in order to determine the functional requirements for a standard software suite'another promise it had made to GAO'the IG's office found.
PTC did not return repeated phone calls requesting comments.

GAO's Golden said that, normally, if an agency does not follow through on the actions it promises, protesters file a second round of complaints.

'Obviously, GAO depends on protesters bringing things to our attention,' he said.
That has not happened in this case.

Mendi Paschal, a spokeswoman for UGS, did not know until contacted by GCN that the IG's office had issued a report. Nor did she know that the review by the IG's office was separate from GAO's actions and that it would not be automatically forwarded to GAO.

'We sincerely believed that NASA was going to do what it said it was going to do,' Paschal said.

The matter is not completely closed. NASA spokesman David Steitz said the Office of the Chief Engineer had initiated an agencywide assessment, led by the NASA Engineering Safety Center, to set criteria for future MCAD procurements. The IG's memo stated this action responds to one of its recommendations, but it will continue to monitor the agency's actions in completing the assessment and issuing written guidance.

In addition, the IG's memo gave NASA a Sept. 12 deadline to respond more fully to two of its recommendations'that the JSC procurement officer suspend any activity to increase the number of PTC software seats and minimize the time span of any license renewals, and that NASA notify GAO of its failure to comply with the original promise to conduct a new solicitation.

Madeline Chulumovich, a spokeswoman for the IG's office, said the agency had provided responses on Sept. 12, but it would take a while to post them on the Internet.

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