Protest challenging exclusion of protester from the competition is denied. The agency excluded the protester because one of the company’s employees accessed the agency’s pre-proposal presentation website before the time specified in the solicitation. The protester asserted that the prohibition on accessing the website was unduly restrictive of competition. GAO found that the agency reasonably determined that the website contained non-public information and thus appropriately prohibited offerors from accessing it. The protester also claimed that even though its employee accessed the site before the specified time, exclusion from was unwarranted. But GAO noted that the solicitation had explicitly informed offerors that accessing the site before the specified time would result in exclusion from the competition.
The Defense Information Systems Agency posted a solicitation seeking services to modernize the agency’s legacy system architecture. The solicitation stated that it would provide offerors with a pre-proposal presentation and code review on May 5. The solicitation provided that access to the presentation and code review would only be granted to individuals who had been approved by DISA. Individuals approved to attend would be notified by email when they could access the website for the presentation and code review.
On May 6, DISA sent an email to all individuals who had been approved to participate in the presentation and code review. The solicitation instructions and the email warned offerors that they could not access the presentation and code review website until 8:00 am on May 7. The solicitation and email further provided that if offerors accessed the site before the 8:00 am on May 7, they would be excluded from the competition.
An employee for InterImage Inc. accessed DISA’s presentation website on May 6. The contracting officer concluded that InterImage had failed to follow solicitation instructions and thus excluded the company from the competition. InterImage protested.
InterImage first attacked the prohibition on accessing information. InterImage claimed that the pre-proposal presentation did not contain sensitive information that would provide anyone with a competitive advantage. Thus, the prohibition on accessing the website lacked a reasonable basis and was unduly restrictive of competition.
GAO, however, found the prohibition reasonable. DISA believed that the pre-proposal presentation included non-public information. The contracting officer reasonably decided that all offerors should access the information at the same time to ensure fair competition. While InterImage disagreed with DISA’s assessment about the competitive value of the information in the pre-proposal presentation, this was not enough to sustain a protest.
Although InterImage did not dispute that one of its employees accessed the website, it contended that the access was unintentional and that the agency’s reaction—excluding the company from the competition—was unwarranted. GAO noted that the solicitation instructions clearly put offerors on notice that any attempt to access the pre-proposal presentation website before the specified time would result in elimination from the competition. The decision to exclude InterImage was reasonable.
InterImage is represented by Alexander B. Ginsberg and Kevin R. Massoudi of Pillsbury Winthrop Shaw Pittman LLP. The agency is represented by LaTonya McFadden and Andriani Buck of the Defense Information Systems Agency. GAO attorneys Young H. Cho and Peter H. Tran participated in the preparation of the decision.
