Link: GAO Opinion
Agency: Department of Health and Human Services
Disposition: Protest denied.
Keywords: Procurement Integrity; Prejudice
General Counsel P.C. Highlight: Proof of actual prejudice is an essential part of any viable protest. Without a showing of actual prejudice, the protest will be dismissed.
—————————————————————————————————————————East West, Inc. (East West) protests the award of a contract, issued by the National Institutes of Health (NIH), for custodial services at NIH buildings.
The RFP contemplated the award of a five-year indefinite-delivery/indefinite-quantity contract to the offeror whose proposal represented the best value to the government, considering technical, cost/price, and past performance. Following the receipt of the initial proposals, the contracting officer (CO) ultimately established a competitive range of five proposals and invited the firms to submit revised price proposals. East West responded by reducing its proposed price. Another offeror was selected for award.
The day after the decision was signed, the agency project officer met with the awardee’s personnel to discuss various concerns and to offer an unofficial notice of award (contingent on receiving final authority to make an award). The awardee’s project manager asked to meet with staff members of the other two offerors, but this request was denied by the CO. East West contacted the contract specialist to complain that the project manager had visited its offices and interviewed its employees anyway. The contract specialist responded that no official award had occurred even though a decision had been made and was not sure why a staff member from the awardee’s company had visited East West.
East West requested a debriefing and filed a protest following the official award. The protest was dismissed as premature since it was filed before the debriefing was received. East West then filed a second protest after receiving the debriefing. NIH took corrective action by suspending contract performance and conducting an investigation of the alleged procurement integrity violations. East West’s protest was dismissed.
The CO conducted an investigation and found no evidence that the awardee had received source selection or procurement sensitive information, or that it had become privy to information that gave it a competitive advantage. The awardee was again selected to receive the contract.
East West contends that NIH officials committed a procurement integrity violating by sharing “procurement-related” information with the awardee regarding the contract award prior to making an official award. GAO states that the Procurement Integrity Act prohibits any present or former official of the United States from “knowingly” disclosing contractor bid or proposal information or source selection information before the award of a contract. Source selection information includes bid and proposal prices, source selection and technical evaluation plans, technical and cost/price evaluations, competitive range determinations, rankings of bids/proposals, and reports/evaluations of source selection panels, boards, or advisory councils.
GAO’s review of the record fails to demonstrate that a prejudicial procurement integrity violation occurred. There is no evidence that an agency official disclosed East West proposal information to the awardee. The agency admitted to giving notice before it had actual authority to make award, which arguably was a violation, but the GAO found that this disclosure did not prejudice East West. Because proof of prejudice is necessary for pursuit of a protest, the GAO denied the protest.