Link: GAO Opinion
Agency: Department of the Navy, Military Sealift Command
Disposition: Protest denied.
Keywords: Disclosure of Source Selection-Sensitive Information
General Counsel P.C. Highlight: The disclosure of source selection information, including an offeror’s price, during the course of 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.
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The Department of the Navy, Military Sealift Command, issued an RFP for the operation and maintenance of large, medium-speed roll-on/roll-off (LMSR) ships in the agency’s surge project. The protester, OSI, challenged the evaluation of its proposal. During the evaluation stage and in preparation for opening discussions with offerors in the competitive range, the contracting officer sent an email to General Dynamics American Overseas Marine (AMSEA), the eventual awardee, that inadvertently contained pricing and discussion questions for all offerors, including the protester. AMSEA‘s receiving official stopped reading the document when he realized what it contained, deleted the attachment, and notified the contracting officer of the error. The contracting officer notified the offerors of the mistake and eventually determined that the disclosure did not give AMSEA a competitive advantage.
After submitting final proposal revisions, the Agency rated OSI’s technical proposal as marginal, its past performance as very good, and its socioeconomic factor as satisfactory. The Agency judged AMSEA’s technical proposal as exceptional, its past performance very good, and its socioeconomic factor as satisfactory. AMSEA submitted a lower price by 8.5%. OSI protested the Agency’s decision to allow AMSEA to remain in the competition and the evaluation of OSI technical and socioeconomic factors.
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. If the agency considers the issue and decides to take no action, GAO will sustain a protest based on the improper disclosure only where the protester demonstrates that it was in some way actually, competitively prejudiced by the disclosure.
During the procurement, AMSEA alone was asked to explain in detail each of the changes that it made to its final proposal revision, to insure that AMSEA’s changes did not result from any information that it learned in the disclosure. The Agency reviewed this information and was satisfied that AMSEA had not profited from disclosure of source selection information. GAO agreed and further determined that the protester had not been able to document any prejudice to its proposal by the release of information. AMSEA had the lowest price after the initial evaluation, lowered its price more in its final proposal revisions, and the protester could not explain how, knowing that OSI had a higher price, that AMSEA would continue to lower its price.
OSI objected to its satisfactory rating on the socioeconomic factor. It argued that it should have received an exceptional because it is a small business and will perform the majority of the work on the contract. The GAO disagreed that a small business automatically is entitled to an exceptional rating on socioeconomic factor just for doing the majority of the work. The GAO noted that OSI had not identified any specific small businesses or minority institutions on this project, the Agency was reasonable in evaluating them as acceptable.
OSI further objected to their technical evaluation as marginal. The GAO noted, however, that OSI could prevail on this protest ground completely and still not be in line for award. If the Agency concedes that OSI’s technical proposal was exceptional, then the non-price factors between OSI and AMSEA would be equal. Where the non-price factors are equal under this solicitation, the Agency then looks to price to make final award. Since AMSEA was 8.5% lower in price, AMSEA would still be first in line for award. Because OSI could not show actual prejudice in its technical evaluation, the GAO then denied OSI’s final protest ground.