Protest challenging award is denied. The protester argued the awardee had hired a former agency official and thus improperly obtained proprietary information. GAO found that while the awardee had obtained access to non-public information from this former official, the information was stale and outdated. As a result, the information did not give the awardee a competitive advantage.
Background
NASA issued a solicitation seeking IT services to support the agency’s communications infrastructure. Three offerors, including Leidos and Science Applications International Corporation (SAIC), submitted proposals. NASA found that SAIC and Leidos had very similar ratings. Nevertheless, NASA concluded that Leidos’s proposal was superior based on discriminators under the soliciaton’s mission suitability factor.
SAIC filed a protest challenging the award to Leidos. SAIC alleged that Leios had engaged a former NASA official as a consultant and obtained non-public, competitively useful information. NASA took corrective action to investigate SAIC allegations. GAO dismissed the protest as academic. After completing the investigation, NASA reaffirmed the award to Leidos, concluding the company had not obtained competitively useful information. SAIC filed a second protest.
Legal Analysis
- Information Leidos Accessed Wasn’t Competitively Useful – SAIC alleged that the consultant Leidos hired had access to source selection information and SAIC’s proprietary information from work on the incumbent contract. SAIC further alleged that the former-official had helped to develop the solicitation. GAO, however, found that while the official had access to non-public information, that information had either (1) become public after the official left NASA, or (2) was outdated and stale. While the official had worked on developing the solicitation, the procurement had changed significantly after the official left NASA. The information Leidos obtained was not competitively useful.
- Leidos Complied with Service Contract Act – SAIC claimed that Leidos had not complied with a material solicitation requirement because it had not provided health and fringe benefits required by the Service Contract Act. GAO noted that while Leidos had proposed low fringe rates, low fringe rates are not objectionable so long as the protester does evince an intent to violate the Service Contract Act. Moreover, the agency had assessed a weakness to Leidos for these low rates, but it also reasonably found that the low rates were a correctable error that did not undercut the strength of Leidos’s proposal.
- NASA Reasonably Evaluated Realism of Direct Labor Rates – SAIC contended the agency failed to evaluate the impact of Leidos’s proposed direct labor rates, which were below the incumbent rates. But GAO reasoned that an agency is not required to adjust proposed rates simply because they do not mirror the incumbent rates. In any event, the soliciatoin specified that incumbent rates were not a requirement or even a preference.
- NASA Reasonably Evaluated Realism of Leidos’s Minor Subcontractor Rates – Leidos alleged that NASA failed to analyze the realism of the rates proposed by Leidos’s minor subcontractors. GAO, however, found that Leidos had included a price analysis for its minor subcontractors, and that NASA had considered the analysis and reasonably accepted its conclusions.
SAIC is represented by Daniel R. Forman, Michael E. Samuels, Cheri J Owne, Lyndsay A. Gorton, and Alexandra L. Barbee-Garrett of Crowell & Moring LLP. The intervenor, Liedos, is represented by Paul F. Khoury, Craig Smith, Kendra P. Norwood, Sarah B. Hansen, and Jennifer Eve Retener of Wiley Rein LLP. The agency is represented by Vincent A. Salgado, Marla Harrinton, Cody Corley, and Eric Freeman of NASA. GAO attorneys Sarah T. Zaffina and Jennifer D. Westfall-McGrail participated in the preparation of the decision.
