The awardee hired a former agency official to help draft its quotation. This official had been a director at the agency and participated in preparing solicitation documents. The protester alleged this former official had given the awardee an unfair competitive advantage and created a biased ground rules OCI. The former official undoubtedly had access to non-public procurement information. Nevertheless, GAO reasoned this information had not given the awardee a competitive advantage. The information had become public or had been revised after the official left the agency.
Skyward IT Solutions, LLC, GAO B-421105.2
Background
The Centers for Medicare and Medicaid Services (CMS) posted an RFQ for information technology development. Several vendors, including Skyward IT Solutions and eSimplicity, Inc., submitted quotations. CMS awarded the contract to eSimplicity.
Skyward protested, alleging eSimplicity had gained an unfair advantage by using a former CMS official as a consultant. CMS took corrective action to investigate. Following the investigation, CMS determined eSimplicity had not received a competitive advantage from the former official. CMS reaffirmed the award to eSimplicity. Skyward filed another protest.
Analysis
Unfair Competitive Advantage
eSimplicity engaged a former agency official as a consultant. This official had been the director of CMS’s Data System Group and overseen the agency’s information systems program. In that position, she had access to solicitation documents and had provided comments on the acquisition plan. Skyward argued this access to non-public solicitation information had given eSimplicity an unfair competitive advantage.
GAO acknowledged the former official had access to non-public solicitation information. Nevertheless, GAO found that the information was not competitively useful because it had either become public or had been revised after the official left the agency.
Biased Ground Rules
Skyward also alleged eSimplicity had a biased ground rules OCI from the former official’s work modifying the draft solicitation. But GAO found the evidence didn’t support a biased ground rules OCI. The former official had only made input on a high level into the procurement. The solicitation was not finalized until after she left the agency.
Misleading Discussions
Skyward contended CMS conducted misleading discussions. Skyward claimed the agency didn’t notify the company of concerns with its high price. But GAO found CMS didn’t have concerns with Skyward’s price. While Skyward’s price was higher than eSimplicity’s, it was lower than the government estimate and in line with the average of the other quotes.
Professional Compensation Plan
Skyward noted the solicitation incorporated FAR 52.222-46, which requires an evaluation of professional compensation. But, Skyward, contended, CMS didn’t evaluate professional compensation. GAO agreed that CMS didn’t evaluated professional compensation. But GAO also believed Skyward had not been prejudiced by this omission. Neither Skyward nor other vendors had submitted compensation plans. None of the vendors had expected CMS to evaluate compensation, so there was no harm.
Price Realism
Skyward argued the agency had performed a flawed price realism analysis. GAO noted nothing in the solicitation required a price realism analysis. Indeed, the solicitation sought to award a time-and-material contract with fixed-price labor rates. Thus, a price realism assessment was unnecessary. To be sure, the award decision had mentioned that prices were realistic. But it appeared the contracting officer had used that word carelessly, not as a reference to a low price.
Skyward is represented by David B. Dixon, Robert C. Starling, Toghrul M. Shukurlu, and Aleksey R. Dabbs of Pillsbury Winthrop Shaw Pittman LLP. The agency is represented by Pamela R. Waldron and Kevin Misener of the Department of Health and Human Services. GAO attorneys Sarah T. Zaffina and Jennifer D. Westfall-McGrail participated in the decision.
–Case summary by Craig LaChance, Senior Editor
