McAfee Out of Luck on Unfair Air Force Contract

     (CN) – Though the United States unfairly blocked McAfee from bidding on a firewall software contract for the Air Force, potential national security issues foreclose court intervention, a federal judge ruled.
     McAfee’s complaint with the Court of Federal Claims alleged that the Air Force abused its discretion and violated the Competition in Contracting Act by allegedly keeping the bidding closed for the creation of next-generation firewall software.
     Though a course of action, or COA, involving McAfee was rated as “best value,” “most cost effective” and “lowest security” risk as compared to the other four courses of action (COAs), the Air Force decided in April 2012 to proceed with COA 2, which was described as “too expensive” among other issues.
     The Air Force asked General Dynamics for a proposal, and General Dynamics recommended Palo Alto Networks.
     Judge Charles Lettow found that there was no competitive selection.
     “The administrative record manifestly demonstrates that the Air Force did not conduct an open competition for its network security needs prior to selecting COA 2,” Lettow wrote. “It did not issue a direct solicitation, nor did it instruct any of its NETCENTS contractors to hold one. Yet, with the selection of COA 2 in 2012, the entirety of the Air Force’s network security infrastructure was directed towards a sole-source standardization
     Lettow found that the Air Force did not qualify for any of the narrow expectations that that allow it to narrow the competition process and keep McAfee out of the bidding.
     Though he sided with McAfee on the merits, Lettow nevertheless found no way to give the software company the injunction it wanted.
     “In effect, this is a situation in which McAfee has demonstrated a violation by the Air Force of statutes and the [Federal Acquisition Regulation], but no viable remedy is at hand,” Lettow concluded.
     An injunction against the contract is the sole relief available to the Palo Alto, Calif.-based company, but it would inevitably cause delays in security upgrades needed to protect the agency’s infrastructure against possible cyberattacks, according to the ruling.
     Issuing an injunction that unwinds “that step of the standardization would drastically affect the Air Force’s network security,” Lettow wrote.
     “Bearing in mind that ‘allegations involving national security must be evaluated with the same analytical rigor as other allegations of potential harm to parties or to the public, the court finds that the national security interests at stake here are overpowering,” Lettow added. “The court cannot conclude that the government’s attestations of urgent and present danger in the event of an injunction are without foundation. One need not look very hard to find very recent examples of cyperespionage.”
     The court released a redacted version of the opinion on July 17 at the request of the parties after filing the original opinion and order under seal on July 12.
     “In the absence of evidence to the contrary, the court finds that the delay would damage national security as the government claims,” Lettow wrote. “The resulting balance of hardships weighs in favor of the government an against the issuance of an injunction. In this instance, the public’s interest in maintaining national security outweighs adherence to the competitive procurement mandate.”

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