Link: GAO Opinion
Agency: Department of the Army
Disposition: Protests denied.
Agency’s disqualification of the protester from further participation in two task order competitions for combat support services issued under an indefinite-delivery/ indefinite-quantity contract was reasonable, where an employee of the protester improperly accessed source selection sensitive and proprietary information, and the protester, in response to a request from the agency that the employee be isolated from the two open task order competitions for which the improperly accessed proprietary information would be competitively useful, refused to do so.
General Counsel P.C. Highlight:
KBR primarily argues that because the agency did not specifically find that KBR had “obtained an unfair competitive advantage” as the result of its LOGCAP IV program manager’s actions; the agency was precluded from disqualifying KBR from these task order competitions. The protester contends in this regard that the statements and affidavits of KBR’s LOGCAP IV contracts manager and program manager “demonstrate that no one from KBR reviewed, retained or used the competition sensitive information,” and there is thus a “complete lack of evidence” to support the agency’s conclusion that competitively sensitive information may have been compromised, or that “an appearance exists that proprietary information was compromised, causing harm to the integrity of the procurement process.” The protester adds that in any event, the agency “improperly imposed the most severe sanction of exclusion from the TMDE and Udairi Task Order competitions without consideration of whether other less drastic remedies were practicable or sufficient.” GAO has recognized that, in meeting their responsibility to safeguard the interests of the government in its contractual relationships, contracting officers are granted wide latitude to exercise business judgment, and may impose a variety of restrictions, not explicitly provided for in the regulations, where the needs of the agency or the nature of the procurement dictates the use of those restrictions. For example, a contracting officer may protect the integrity of the procurement system by disqualifying an offeror from the competition where the firm may have obtained an unfair competitive advantage, even if no actual impropriety can be shown, so long as the determination is based on facts and not mere innuendo or suspicion. It is GAO’s view that, wherever an offeror has improperly obtained proprietary proposal information during the course of a procurement, the integrity of the procurement is at risk, and an agency’s decision to disqualify the firm is generally reasonable, absent unusual circumstances.
Here, there is no question that the cost/price evaluation summary that was attached to the contacting officer’s 6:35 p.m., September 23 e-mail included information that was source selection sensitive, and information that was proprietary to KBR and its competitors that was relevant to the LOGCAP IV task order competitions. Nor, based on the statement and affidavit of KBR’s LOGCAP IV program manager, is there any question that the program manager, at a minimum, knowingly obtained that source selection sensitive and proprietary information by accessing the 6:35 p.m., September 23 e-mail and attachment; that he did so even though he had been previously advised by the agency that the e-mail and its attachment should be deleted without being viewed; and that he did so after he had in fact advised the agency that he had complied with the direction to delete the e-mail and its attachment. Accordingly, in GAO’s view, the agency’s actions were based on facts, rather than mere innuendo, as is asserted by the protester.
GAO also rejects KBR’s assertion that the question of whether KBR’s program manager improperly gained access to the sensitive information at issue here can be resolved by reliance on the KBR LOGCAP IV program manager’s statement that he merely viewed the first page of the cost/price evaluation summary before closing the document, and the he does not remember or retain any source selection sensitive or proprietary information that would be competitively useful to KBR. Since the KBR program manager is the individual whose actions are in question, and KBR is the firm that has been disqualified from the competition, the program manager’s self-serving statement that he did not “read” the cost/price evaluation summary, and KBR’s self-serving assertion that the program manager does not have anything more than a “cursory knowledge about the message or its contents,” cannot, in GAO’s view, be accorded controlling weight without some corroborating evidence, in our consideration of whether the agency’s disqualification of KBR from the LOGCAP IV task order competitions in question was reasonable.
The record reflects that the agency first considered whether any action should be taken with regard to the task order solicitation and competition for which the cost/price evaluation summary was prepared. GAO notes that the agency determined that because proposals had been submitted prior to the cost/price evaluation summary being disclosed to KBR’s program manager, and offerors, including KBR, were not provided with an opportunity to revise their proposals, the potential impact on the integrity of that procurement did not merit the disqualification of KBR or the taking of any other action specific to that procurement. Turning to the competitions at issue here, the agency found that since the competitions were open, that is, the Udairi Airfield and TMDE solicitations were issued on September 24 and 30, respectively, with each having the closing date of October 22, the actions of KBR’s program manager, which led the agency to conclude that the cost/price evaluation summary either may have been compromised or at least created the appearance that the cost/price evaluation summary was compromised, necessitated that the program manager be isolated from these competitions. Under the circumstances here, GAO cannot find unreasonable the contracting officer’s request that, in order to preserve the integrity of the procurement system, the KBR program manager be isolated from these competitions. Nor can GAO find the agency’s subsequent determination that KBR be disqualified from these competitions to be unreasonable, in light of KBR’s refusal to isolate its program manager from these competitions when requested to do so by the agency. That is, although KBR complains that the agency’s disqualification of KBR from these competitions was unduly severe, the record reflects that this action was taken by the agency only after KBR refused the agency’s request to isolate the program manager. Given the circumstances, which include KBR’s initial refusal to isolate its LOGCAP IV program manager from these open LOGCAP IV task order solicitations, GAO finds the agency’s elimination of KBR’s proposals from these task order competitions to be reasonable and within the discretion granted to the contracting officer. The protest is denied.