Protest Update

Associated Energy Group, LLC, B-420857.6, B-420857.7 (January 10, 2024)

• GAO denied a protest alleging a violation of the Procurement Integrity Act (PIA) because the disclosure at issue was inadvertent and did not cause competitive harm.
• The Defense Logistics Agency (DLA) amended its solicitation as part of its latest round of corrective action following multiple protests of this procurement. In support of Amendment 15, the contracting officer also prepared an internal memorandum explaining the rationale for the latest amendment. The contracting officer “inadvertently forwarded” the internal memorandum to one of the competitors, prompting the other offeror to protest.
• Protester Associated Energy Group (AEG) argued that the disclosed memorandum contained procurement-sensitive information which, when coupled with DLA’s disclosure of AEG’s pricing information during an earlier debriefing, provided the other offeror with an unfair competitive advantage.
• GAO concluded that the circumstances did not support a PIA violation because there was no evidence that the disclosure was anything other than inadvertent; the contracting officer did not “knowingly” or intentionally distribute the memorandum.
• GAO also scrutinized the information that was in the memorandum and found reasonable the agency’s conclusion that, in any event, the disclosed material was not competitively useful.

The procurement integrity provisions of the Office of Federal Procurement Policy Act provide, among other things, that a federal government official “shall not knowingly disclose contractor bid or proposal information or source selection information before the award of a Federal agency procurement contract to which the information relates.” 41 U.S.C. § 2102(a)(1). Because the PIA prohibits a “knowing[]” disclosure of bid or proposal information, GAO will not find a PIA violation where the disclosure was inadvertent. Nevertheless, the disclosure of proprietary or source selection information to an unauthorized person during the course of a procurement is improper, and even if the disclosure does not give rise to a PIA violation, it may still create an unfair advantage affecting the integrity of a competition. See FAR 3.104-7(a).

AnaVation LLC, B-421966.1-.3 (December 19, 2023)

• In a task order competition conducted by the Department of Homeland Security for IT services, GAO denied a protest alleging that the awardee’s proposed key personnel should have been deemed unacceptable because they did not meet the solicitation’s minimum requirements.
• The solicitation established education and experience requirements applicable to each key personnel labor category level and stated that the educational degree held by the proposed individual must be relevant to the position (e.g., an anthropology degree is not relevant for a position supporting web application development).
• The protester alleged that three of the awardee’s proposed Program Manager/Technical Leads had received educational degrees not relevant to their positions, namely degrees in industrial engineering, business administration, and international relations. The protester further noted that since the solicitation stated it was “desired” for this position to possess a degree in IT, computer science, project management, or a related field, only those degrees would be deemed “relevant.”
• GAO disagreed, finding that the agency reasonably considered the resumes and determined that the degrees of each proposed individual were in fact relevant. Specifically, the technical evaluator team lead averred that it considered an MBA to be relevant to project management, and that a degree in international relations was desirable and broadly relevant to work in the intelligence community.
• Finally, GAO found that while the solicitation expressed a preference for certain desired degrees, nothing in the solicitation mandated that key personnel possess degrees in those desired fields.

Protesters continually raise protest allegations challenging the evaluation of key personnel, both with respect to the availability of proposed key personnel and the reasonableness of the agency’s assessment of their qualifications. While the result here was to find no basis to object to the agency’s evaluation, a different set of educational degrees could have resulted in a different outcome. When assessing protest risk, the terms of the solicitation are critical and should be considered carefully.

Claim Update

Clean Harbors Env’t Servs., Inc., CBA 7704 (January 10, 2024)

• The Civilian Board of Contract Appeals recently reaffirmed the importance of ensuring that a contractor’s desired terms are clearly included in the executed contract.
• In this case, the agency issued a Request For Quotation (RFQ) that attached an unsigned copy of its standard environmental services agreement (ESA), and also sent an email to the agency that the ESA “we discussed” was attached. The contractor later submitted a final quote that did not reference or otherwise include the ESA that had been attached to the earlier quote.
• The purchase order contract that was eventually issued to the contractor stated that the SOW and the contractor’s final quote were incorporated into the contract, but again did not mention or otherwise attach the ESA. The contractor refused to perform the purchase order contract because it argued that the agency was first required to complete waste profiles specifying the waste to be picked up under the ESA. The agency terminated the contractor for default, and Clean Harbors appealed the termination.
• The CBCA rejected the contractor’s argument that the ESA was a part of the purchase order contract. The board found that the RFQ clearly stated that terms and conditions other than those in the RFQ would not be accepted and no language from the RFQ incorporated the ESA by reference. The purchase order “did not refer to the ESA, did not attach it as a contract document, and did not in any way incorporate the ESA or any of its terms into the order.”
• Applying the Federal Circuit’s standards for incorporation by reference, the board concluded that in “the absence of any language expressly and clearly incorporating an ESA into the purchase order,” it was precluded from doing so. Thus, where there was no evidence that the agency had evaluated the ESA or language in the executed purchase order that clearly and expressly incorporated the ESA, the ESA was not a part of the contract.

Contractors should be mindful, particularly when responding to an RFQ as opposed to an RFP, that the boards have held that only those terms in a contractor’s quote that are incorporated into the resulting contract either expressly or clearly by reference constitute contractual terms.

Suspension and Debarment Update

Interagency Suspension and Debarment Committee Report for Fiscal Years 2021 and 2022, Law360

David Robbins authored an article for Law360 on the Interagency Suspension and Debarment Committee’s report for Fiscal Years 2021 and 2022, released to Congress in the waning days of 2023. Though the 2023 fiscal year report remains pending, issuing two fiscal years of delayed reports at once is tremendously helpful, as the government contracting community seeks to understand the risks posed by suspension and debarment. Read the full article here.

Suspension and Debarment: FY 2023 By the Numbers, Law360

David Robbins authored a second article, analyzing the federal government’s suspension and debarment apparatus’s actions over the past 12 months. Spoiler alert: After a not-insubstantial uptick in fiscal year 2022, overall suspension and debarment numbers fell dramatically in 2023. Read the full article here.