The COFC ordered the government to disqualify an offeror due to PIA violation. The Federal Circuit affirmed, reasoning that while disqualification was harsh, in this case, it was appropriate. While the government wanted a remand, it had not explained how a remand would resolve the PIA violation.
Sagam Securite Senegal v. United States, Fed. Cir. 2021-2279
- Agency Cancels Solicitation – The agency issued a solicitation. The incumbent and other offerors submitted proposals. The agency held discussions. But during discussions, the agency disclosed some of the incumbent’s cost information to another offeror. The agency determined the disclosure violated the Procurement Integrity Act (PIA). As a result, the agency decided to cancel the solicitation and issue a new one.
- COFC Protest – The incumbent filed a COFC protest, objecting to the cancelation. The COFC sustained the protest. The COFC entered an injunction directing the agency to disqualify the offeror that received the incumbent’s information. The COFC also directed the agency to restore the competition to the status quo. Because the incumbent was the only eligible offeror reaming, it ended up with the contract. The agency appealed.
- PIA Violation – The Federal Circuit held the agency’s disclosure of the incumbent’s information violated the PIA. The information revealed how the incumbent was structing its labor rates and thus constituted cost or pricing data under the PIA.
- Resolicitation Was Inadequate – The Federal Circuit also opined that the agency’s response to the PIA violation—canceling and resoliciting—was inadequate. The court opined resolicitation wouldn’t address the improper disclosure. Indeed, the offeror that received that information was invited to participate in the new procurement. A mere redo could not erase the knowledge the offeror gained from the disclosure.
- Disqualification – The agency argued the COFC should have remanded to the agency and not taken the harsh step of disqualifying an offeror. The Federal Circuit noted that often in such circumstances, remand is the appropriate response. But given the unusual facts in this case, the court could not say the COFC abused its discretion in disqualifying the offeror. Again, the agency had not shown a remand would resolve or mitigate the PIA violation.
- Directed Award? – The agency complained the disqualification was tantamount to a directed award to the protester. The Federal Circuit, however, didn’t see a problem, The COFC had merely ordered restoration of the competition. While this meant the protester would win the award, this was a function of the limited competitive range.
The protester is represented by Thomas Andrew Coulter of Norton Rose Fulbright US LLP. The government is represented by William Porter Rayel, Brian M. Boynton, Patricia M. McCarthy, and Douglas K. Mickle of the Department of Justice.
–Case summary by Craig LaChance, Senior Editor
