Government’s motion for summary judgment on contractor’s appeal is denied. The contractor appealed a termination for default. The government moved for summary judgment, arguing that the termination was justified because prior to award, the contractor had received source selection information in violation of the Procurement Integrity Act. While there was no dispute that the contractor had received information about the procurement from an agency official, the board found that the information did not fit within the Procurement Integrity Act's definition of source selection information. What's more, there was no evidence that the contractor had paid an agency official for this information, which is required for a violation of the PIA.
CLC Construction Company had a contract with the Army to build a courthouse in Afghanistan. The Army, however, terminated the contract for default, reasoning that CLC had obtained source selection information before the award of the contract. It turned out that prior to award, an officer at CLC had been in contact with an agency official working on the procurement. This official gave CLC a copy of the government’s internal cost estimate, he advised CLC on the lowest price proposal the agency had received, and he discussed how many air conditioners the courthouse may require with CLC.
CLC appealed the termination of its contract to the ASBCA. While that appeal was pending the Army decided to rescind the contract due to what it believed was a violation of the Procurement Integrity Act. The Army sought to recover money paid to CLC prior to the termination. CLC did not appeal the decision to rescind the contract. The Army then moved for summary judgment in CLC’s still pending termination appeal.
The Army first argued that CLC’s appeal was not reviewable. Specifically, the Army reasoned, it had found a violation of the PIA, which rendered the contract void ab initio. Because CLC had not appealed the rescission decision, the contract was void and thus CLC could no longer contest the termination decision.
But the board found that this argument ignored the fact that CLC had submitted an appeal disputing the first termination decision. The government’s second decision on rescission asserted a new legal theory, but that theory was based on the same set of facts as the termination appeal. The board was unaware of any authority that would require a contractor to reiterate its denial of the facts whenever the government asserts a new legal theory. Indeed, to require a contractor to keep denying facts with each new legal theory would exalt form over substance.
Turing to the merits of the government’s motion, the board found that the facts did not support summary judgment. First, the board found the receipt of the government estimate did not violate the PIA. The board reasoned the estimate did not fit into the definition of “source selection information” in the PIA because the plain language of the PIA’s text simply did not include a government estimate.
Additionally, the board was not convinced that the information CLC received about the lowest price proposal was a violation of the PIA. The board noted that the record included an abstract of proposal prices received. None of the prices listed in the abstract matched the price that CLC was given. This created an issue of fact as to whether CLC had actual received pricing information.
The board further opined that other information CLC had received did not violate the PIA. The agency official had told CLC that its proposal rating had been changed from unacceptable to acceptable. But again, the board found that this information did not really constitute source selection information. It was not a technical evaluation plan nor a technical evaluation. It was only a reference to the rating assigned to a proposal after evaluation. Revealing an offeror’s rating without more confers no competitive advantage. There was no evidence that receiving this information had helped CLC in any way.
Moreover, the information CLC received about air conditioners was not enough to sustain the Army’ summary judgment motion. The board found that the record was insufficiently clear to determine whether the exchange of this information violated the PIA. Again, it did not concern the evaluation or ranking of proposals and was not marked as source selection information.
Finally, and importantly, the board noted that to constitute an offense under the PIA, the information received must have been in exchange for payment. . There was no allegation and no evidence that CLC paid for or offered anything to the agency official in exchange for the information received.
CLC is represented by Costa Maroulis its CFO. The government is represented by Scott N. Flesch and Major Ronald M. Herrmann of the Army.