Link: GAO Opinion
Agency: Department of Health and Human Services
Disposition: Protest denied.
Protest that corrective action in response to protest is inadequate is denied; proposed corrective action–issuing new solicitation and assigning new contracting personnel to conduct procurement–is adequate to address concern that e-mail sent by project manager during course of original competition created appearance of impropriety.
General Counsel P.C. Highlight:
MayaTech asserts that the e-mail undermined the integrity of the entire evaluation because the project officer intended to provide the names of current MayaTech staff to a competitor and guide the contractor to recruit those personnel. MayaTech also asserts that agency personnel, some of whom the protester alleges have prior relationships with the successful vendor or other competitors were apparently working to benefit these other firms by revealing MayaTech’s assets during the procurement. According to MayaTech, in lieu of the agency’s conducting a new procurement, the contracting officer should have reviewed the TEP file, discarded any unfounded comments by the “tainted” TEP member, and made a new award determination based on the evaluation already performed. Alternatively, the contracting officer should have reevaluated the original proposals. GAO states that in negotiated procurements, agencies have broad discretion to take corrective action where they determine that such action is necessary to ensure fair and impartial competition. An agency need not conclude that a protest is certain to be sustained before it may take corrective action; where the agency has reasonable concern that there were errors in the procurement, even if the protest could be denied, we view it as within the agency’s discretion to take corrective action. GAO will not object to the specific corrective action proposed, so long as it is appropriate to remedy the concern that caused the agency to take the action.
HHS’s corrective action appears to be a reasonable means of addressing the identified appearance of impropriety, and MayaTech’s assertions do not provide a basis for us to reach a different conclusion. MayaTech’s protest essentially comes down to its position that, instead of conducting a new procurement, the agency should have done no more than reevaluate the proposals. While this arguably would be an appropriate approach to avoid providing vendors an opportunity to take advantage of improperly disclosed information in preparing their new or revised proposals, there is no evidence that information was ever disclosed to offerors here. In this regard, the agency denies that the project officer or other agency personnel intended to provide the names of MayaTech staff to competitors, or that it was attempting to benefit any other competitor, and there is no evidence in the record establishing otherwise. Further, MayaTech has provided no evidence demonstrating that any agency personnel had a prior relationship with the successful vendor or any other competitor, or that information was ever disclosed to any vendor as a result of the e-mail in question. Under these circumstances, given that the apparent impropriety brought into question the integrity of the procurement process as a general matter, GAO sees nothing objectionable in the agency’s decision, essentially, to conduct an entirely new competition with different contracting personnel. It certainly falls within the agency’s broad discretion in this regard. The protest is denied.