Before issuing a solicitation, the agency posted a draft PWS. The draft included some of the incumbent contractor’s labor categories. When the solicitation was issued, the contractor filed a protest, alleging the disclosure of its labor categories had violated the Procurement Integrity Act (PIA). The court rejected the argument. The PIA prohibits a government official from disclosing bid or proposal information. The protester’s labor categories on the incumbent contract were not proposal information. Rather, they were information generated during performance of a contract. The protester had not claimed it would use those same labor categories for the successor contract.
Abacus Technology Corporation and Valdez International Corporation v. United States, COFC No. 22-388
Background
The Air Force issued a solicitation seeking network operations services. The solicitation had a five-step evaluation process. In Step 1, the Air Force would rank proposals from lowest to highest based on price. In Step 2, the Air Force would conduct a technical evaluation for the eight lowest price proposals. If the eight lowest price proposals were unacceptable, the Air Form may evaluate additional proposals. In Step 3, the Air Force would evaluate past performance. In Step 4 the Air Force would establish a competitive range and hold discussions. Step 5 was the best value tradeoff.
The Air Force received 22 proposals. After ranking the proposals by price, the Air Force evaluated technical approaches under step 2. The Air Force determined that the eight lowest price proposals were all technically unacceptable. Nevertheless, the Air Force decided not to consider additional proposal. Instead it proceeded to evaluate past performance for the eight low price proposals. The Air Force then established a competitive range consisting of the eight proposals.
The Air Force informed the other offerors they had been excluded from the competitive range. Two of those offerors—Valdez International Corporation and Abacus Technology Corporation—filed protests with the Court of Federal Claims. They contended they had been wrongly excluded.
Analysis
Standing
As an initial matter, the court found that Valdez lacked standing for some of its arguments. Valdez alleged that the agency had improperly communicated with the eight lowest price offerors. But those communications had occurred during Step 3 of the evaluation and pertained to past performance. Valdez’s price was the 10th lowest so it never made it to Step 3. Any improper communications in Step 3 were disconnected from Valdez’s elimination. Valdez could not establish that but for the improper communications it would have a substantial chance of award.
Valdez and Abacus both argued the Air Force should have considered their proposals after the agency found the eight lowest proposals unacceptable. The court found that Valdez had standing to make this argument. Valdez had the 10th lowest price. If the Air Force had exercised its discretion to consider additional proposals, Valdez’s proposal would’ve likely been considered.
But Abacus had been the 16th lowest price. The court didn’t think this price fell in the range of those that could be still be considered. Abacus had not shown that the Air Force would reach all the way down to 16 when considering additional proposals. Thus, Abacus lacked standing to challenge the Air Force’s failure to consider its proposal. Indeed, in light of it 16th place proposal, the court found that Abacus lacked standing to for all the arguments it asserted in the protest.
Consideration of Valdez’s Proposal
As noted, Valdez contended the Air Force should have considered its proposal when it found the eight lowest price proposals technically unacceptable. The court disagreed. The solicitation gave the Air Force the option to consider other proposals if the lowest eight were not acceptable. But it didn’t require the Air Force to consider additional proposals. While the lowest eight proposals were technically acceptable, the Air Force had reasonably concluded they could be salvaged through discussions. Thus, the Air Force didn’t need to consider any additional proposals.
Procurement Integrity Act
Valdez was the incumbent contractor. Before the Air Force issued the solicitation, it had posted a draft performance work statement for the procurement. The draft statement had included some labor categories form Valdez’s incumbent contract. The Air Force removed the PWS after one day. Nevertheless, Valdez contended this disclosure had violated the PIA.
The court was not persuaded. The PIA prohibits a government official form disclosing bid or proposal information. Here, Valdez’s labor categories on the incumbent contract were not proposal information. When Valdez bid on the incumbent contract, its labor categories were proposal information. But as soon as the Air Force accepted its proposal, those labor categories became information generated during performance of a contract. Indeed, those labor categories related only to Valdez’s incumbent contract. Valdez had not claimed t was using the same categories for the successor contract.
Debriefing
Valdez contended it was entitled a more complete under FAR 15.505. The court disagreed. A debriefing under FAR 15.505 must include three things: (1) the evaluation of significant elements of the proposal, (2) a summary of why the offeror was eliminated, and (3) reasonable responses to the offerors questions. The court found that the debriefing had included the first two elements. The debriefing made clear that Valdez was eliminated solely for its price. The debriefing explained that only the eight lowest price proposals would move on.
Also, while Valdez believed it was entitled to reasonable responses to its debriefing questions, Valdez had not asked any questions. It was impossible for the debriefing to include responses to questions Valdez never asked.
Abacus is represented by Alexander B. Ginsberg and Michael J. Anstett of Fried, Frank, Harris, Shriver & Jacobson LLP. Valdez is represented by Robert S. Gardner and Laura A. Gardner of The Gardner Law Office. The government is represented by Kelly Geddes , Vijaya S. Surampudi, and Richard Schroeder of the Department of Justice as well as Isabelle P. Cutting of the Air Force.
–Case summary by Craig LaChance, Senior Editor
