FAA team decides against further appeals of outsourcing decision

A Federal Aviation Administration official representing flight service employees whose jobs will be outsourced this fall is unhappy with an independent judge's decision to reject a bid protest of the contract award, but is "not inclined" to file an appeal, his lawyer said Monday.

"We're of course disappointed by the decision," said William Thompson, the lead attorney for James Washington, the agency tender official representing the team that vied to keep flight service work in house. "We felt we had a strong case factually and legally."

But Washington has decided he will likely let stand the 102-page decision written by General Services Administration Board of Contract Appeals Judge Edwin Neill in late June and accepted by FAA Administrator Marion Blakey last month. Washington had 60 days to file an appeal and in theory could change his mind before the time is up, Thompson said.

Thompson declined to elaborate on Washington's reasons for accepting the judge's decision. But he noted that the odds are stacked against protests of "best-value" contract awards, in which agency officials consider a combination of technical competency and price. The FAA used the best-value method in its public-private competition for the flight services work.

"We knew in filing the contest that successful challenges of best-value awards were statistically somewhat rare," Thompson said.

A team of Energy Department employees did, however, recently win a bid protest of a best-value award. Thompson, a lawyer with the Washington firm Peckar, Abramson, Bastianelli & Kelley, represented the Energy employees in that contest.

A protective order prevents lawyers from discussing Neill's decision in much detail, Thompson said. A redacted version of the decision, made public last week, reveals that Neill rejected the majority of arguments advanced by Thompson and lawyers for the National Association of Air Traffic Specialists, the union representing the flight service employees.

Neill, for instance, said both parties made a weak case that FAA officials were biased in favor of Lockheed Martin Corp., the contractor that won the flight service work. "Both contesters base their allegations [of bias] on a relatively limited number of facts," he wrote in the decision.

There is evidence that members of teams evaluating the technical aspects of the proposals expressed strong opinions about the bids, Neill said. One team member, in particular, behaved in a manner that could be considered "offensive and overbearing," he noted. This included one incident in which the evaluator threw a book and glasses across a table at fellow team members.

An evaluation team member also made an "unfortunate remark" about "union busting" in what was reportedly a "poor effort to joke so as to relieve tension," Neill wrote. But such behavior does not constitute bias, he stated.

"There is, of course, a strong presumption that government contract officials exercise their duties in good faith," Neill wrote in his decision. "To overcome that strong presumption and establish that the government acted in bad faith, a challenging party must show improper conduct by clear and convincing evidence." Evidence of bias presented by the agency tender official and union fell "woefully short of that standard," Neill wrote. He likewise found no basis to sustain other claims of procedural problems in the public-private job competition.

"The whole [decision] left a bad taste in my mouth," said Kate Breen, president of NAATS. "If he had found for one argument, it may have been a little believable."

Breen, who filed a protest separately from the agency tender official, said she is still deciding whether to appeal Neill's decision. The decision glosses over a lot of "our strongest arguments," she said.

The 102-page document should speak for itself, said FAA spokesman Greg Martin. Administrator Blakey simply followed the advice of the independent judge, he said, and would have been "hard pressed" to reject Neill's reasoning.