Link: GAO Opinion
Agency: Department of Defense
Disposition: Protest denied.
Protest that disclosure of protester’s initial proposed total price resulted in an unfair competition is denied where record does not demonstrate that protester was competitively harmed.
General Counsel P.C. Highlight:
Health Net argues that the integrity of the procurement process has been compromised 1) as a consequence of DOD’s violation of the statutory procurement integrity provisions by disclosing, prior to award, Health Net’s proprietary pricing and proposal information on a publicly accessible website, and 2) because DOD submitted Health Net’s proprietary proposal information to Congress, prior to the time final proposals were due, without identifying the information as competitively sensitive and relevant to an ongoing government procurement. GAO states that the disclosure of source selection information, including an offeror’s price, during the course of a procurement is improper and the agency may take remedial steps, including canceling the procurement, if it reasonably determines that the disclosure harmed the integrity of the procurement process. Where an agency decides that no remedial steps are necessary, GAO will sustain a protest based on the improper disclosure only where the protester demonstrates that it was in some way competitively prejudiced by the disclosure.
Here, the record reflects that Health Net was not competitively prejudiced by DOD’s mishandling of its pricing information. The record reflects that the protester’s information in DOD OIG’s Section 845 Annex of Audit Reports with Significant Findings was not posted on the DOD OIG website until one day after final proposals were due. Thus, even assuming that AGHP accessed the website and learned the information, it could not possibly have used it to its advantage in the competition. Health Net suggests that AGHP could have learned the information as a consequence of the disclosure to Congress, which occurred before final proposals were due, and argues that the contracting officer has yet to adequately investigate this possibility. Setting aside the fact that such a disclosure seems improbable given the short period of time from when the information was delivered to Congress and final proposals were due (approximately three weeks), and the fact that a period of that time included the Christmas and New Year’s holidays, the contracting officer reasonably determined that there was no evidence that AGHP’s pricing changes were the result of its having known of the information set forth in the DOD OIG’s Section 845 Annex of Audit Reports with Significant Findings . In this regard, the contracting officer obtained an analysis regarding AGHP’s pricing revisions in its final proposal which indicated that AGHP explained all of its pricing changes, that the changes were the direct result of discussions or otherwise resulted in price increases. There is no basis for concluding that Health Net was competitively prejudiced as a consequence of DOD’s improper handling of its pricing information. The protest is denied.