While Evaluating Proposals, Agency Learned Awardee Had Been Acquired. Should the Agency Have Considered the Impact of this Transaction?

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While evaluating proposals, the agency learned that the eventual awardee had been acquired by another company. But the acquisition didn’t really register with the agency. Indeed, the evaluation record indicated the agency hadn’t considered the transaction at all. In sustaining a protest challenging the award, GAO found that the agency should’ve assessed whether the transaction affected the awardee’s proposal. The agency argued that it considered transaction after award. But GAO determined that a post-award assessment doesn’t cut it.

Vertex Aerospace, LLC, GAO B-410073, B-420073.2

Background

In November 2020, Amentum Government Services Holdings acquired the parent company of DynCorp International, LLP.  Amentum became DynCorp’s parent. DynCorp requested the DCMA novate several of its contracts to an Amentum affiliate, including an IDIQ contract for aircraft maintenance with the Air Force

In December 2020, after the acquisition, the Air Force issued a task order solicitation to holders of the maintenance IDIQ contract. DynCorps submitted a proposal. DynCorps’ proposal did not mention the acquisition. Nevertheless, while proposals were being evaluated, the DCMA notified the Air Force that DynCorps IDIQ contract had been novated to an Amentum affiliate.

The Air Force awarded the task order to DynCorp. The evaluation did not mention the acquisition of DynCorp. An unsuccessful offeror, Vertex Aerospace, filed a protest alleging the Air Force had unreasonably evaluated the impact of the DynCorp’s acquisition

Legal Analysis

  • Standard for Analyzing Corporate Transactions – When an agency is aware of a corporate transaction, it must assess the impact of the transaction on an offeror. To determine whether the agency has reasonably assessed the impact, GAO looks at the imminence of the transaction and whether the agency was aware of the transaction.
  • The Air Force Was Aware of the DynCorp Transaction – DynCorps was acquired before the Air Force issued the solicitation, and DynCorps did not mention the transaction in its proposal. But the Air Force unequivocally learned of the transaction when DCMA informed it about the novation.
  • The Air Force Didn’t Sufficiently Assess the Impact of the Transaction – The record did not contain any contemporaneous documentation to indicate that the Air Force had meaningfully considered the impact of the acquisition. Indeed, the evaluation did not discuss the transaction at all.
  • Post-Award Assessment Didn’t Cut It – The Air Force contended it analyzed the impact of the transaction after award. But GAO noted that the information the Air Force evaluated had been provided by Amentum, not DynCorp. Moreover, the information did not address the integration of contract performance or intercompany procedures to ensure resources would be available. Indeed, GAO noted that the post-award information provided by Amentum should have raised additional questions about indirect costs.

Vertex is represented by J. Alex Ward, W. Jay DeVecchio, James A. Tucker, and Lyle F. Hedgecock of Morrision & Foerster LLP. The intervenor, DynCorp, is represented by Scott M. McCaleb, Jon W. Burd, Sarah Hansen, Nicholas L. Perry, and Teresita Regelbrugge of Wiley Rein LLP. The agency is represented by Colonel Frank Yoon, Captain Jheremy K. Perkins, Michael J. Farr, Lieutenant Colonel Brian D. Teter, Lieutenant Colonel Shawn C. Tabor, and Ryan C. Springer of the Air Force. GAO attorneys Katherine I. Riback and Evan C. Williams participated in the preparation of the decision.

GAO - Vertex Aerospace