After award, the agency received an anonymous letter accusing the awardee of nefarious conduct—i.e., bid rigging, pilfering proprietary info. The protester said the agency should have investigated these allegations. But GAO didn’t see a problem.
Jacobs Technology, Inc., GAO B-421739.3 et al.
- Unavailable Key Person – During the evaluation, the protester notified the agency that one of its proposed key individuals was unavailable. The protester asked the agency if it could propose an alternate person. The agency said no. The agency then found the protester was ineligible due to the unavailability of key personnel.
- The Anonymous Letter – About a month after award, the protester forwarded an anonymous letter to the agency. The letter stated the awardee was owned by a private equity firm. While performing due diligence on a potential acquisition of one of the protester’s business units, the firm obtained information on the protester’s bidding strategies. The letter claimed the firm had passed that information to the awardee. The letter also alleged the awardee had been involved in a bid-rigging scheme.
- Key Personnel – The protester argued it should not have been found ineligible for the unavailability of key personnel. The protester argued that key personnel was a pass/fail criterion. The protester reasoned its proposal listed personnel for all key positions; it should have received a passing grade. GAO, however, noted the pass/fail criterion was not the only basis on which the agency evaluated key personnel. To be sure, the solicitation required offerors to name key personnel. But once an offeror named personnel, the agency would evaluate whether the key person was available. The agency reasonably determined the protester was unacceptable when the protester said one of its key individuals would be unacceptable
- Substitute Personnel – The protester argued the agency should have allowed it to propose a substitute for the unavailable individual. GAO sided with the agency. A substitute person would require proposal revisions. If the agency allowed revisions, it would have to hold discussions. But the solicitation stated the agency was not required to hold discussions or allow an offeror to revise their proposal.
- Responsibility Determination – The protester contended the agency improperly ignored the allegations of bid-rigging in the anonymous letter and should not have found the awardee responsible. GAO was unmoved. The bid-rigging allegations only emerged after award. Based on the information before the contracting officer during the evaluation, the responsibility determination was reasonable.
- Procurement Integrity Act – In light of the anonymous letter’s allegation of purloined bidding information, the protester argued the agency should have investigated a potential Procurement Integrity Act violation. GAO disagreed. Assuming the awardee’s parent received information on the protester’s bidding strategies, that information had been voluntarily disclosed as part of a corporate transaction. The Procurement Integrity Act does not prohibit these types of due diligence disclosure. What’s more, the Procurement Integrity Act only applies when the government is involved in the disclosure of procurement information. Here, the disclosure was between private parties. There was no government nexus to trigger the Act.
The protester is represented by Brian P. Waagner, Steven A. Neely, George E. Stewart, III, and Peter A. Strickland of Husch Blackwell LLP. The awardee is represented by Kevin P. Connelly, Kelly E. Buroker, Jeffrey M. Lowry, and Michael P. Ols of Vedder Price, P.C. The agency is represented by Barbara Behn Ayala of GSA. GAO attorneys Nathaniel S. Canfield and Evan D. Wesser participated in the decision.
–Case summary by Craig LaChance, Senior Editor
