Disclosure of Unredacted Protest to Awardee’s Staff Not that Big of a Deal; Midnight Sun-Centennial Kirratchiaq JV, LLC, GAO B-419934 et al.

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Protest challenging award is denied. The protester argued that the award should be cancelled because the agency had disclosed its unredacted protest to the awardee. But GAO found that the agency properly investigated the disclosure and ensured that copies of the protest were destroyed. The disclosure had not impacted the protester’s ability to win the contract, so there was no competitive harm. The protester also alleged the agency erred in not conducting discussions. GAO, however, determined the agency had no obligation to hold discussions. Lastly, the protester objected to the past performance evaluation, but GAO found the evaluation of the protester’s references reasonable.

The Air Force issued an RFP seeking to award an IDIQ contract for a variety of construction, repair, and maintenance projects. The RFP provided for an award on a best value basis. But the RFP also specified that if the lowest-priced, technically acceptable offered received a substantial confidence rating under the past performance factor, the Air Force would make award to the offeror without considering other offers.

The Air Force received seven offers. The agency awarded the contract to Defense Contracting & Construction Services (DCCS), finding that the company had submitted the lowest-priced, technically acceptable offer with a substantial confidence past performance rating. An unsuccessful offeror, Midnight Sun-Centennial Kirratchiaq (MSCK) protested.

As an initial matter, MSCK argued that the award to DCCS should be cancelled because the agency violated the protective order by providing DCCS with a copy of MSCK’s unredacted protest and failed to ensure that copies of the protest had been destroyed by DCCS.

But GAO determined that MSCK had not been competitively harmed by the disclosure; it had not impacted MSCK’s ability to win the award. The record showed that DCCS had identified the people that had received the protest, and they had deleted the email and the attached protest. The protest had not been duplicated. Indeed, the personnel that received the protest did not even realize they had received protective information and did not focus on the information because award had already been made. This was sufficient to remedy the disclosure. There was no need to cancel the award.

MSCK argued the Air Force erred in not holding discussions. The RFP did not state that the agency might not engage in discussions. Citing FAR 15.306(a)(3), MSCK reasoned that an agency cannot make award without discussions unless the solicitation states that the government intends to award without discussions.

GAO rejected this argument. While the Competition in Contracting Act requires an agency to specify its intent with regard to discussions, the RFP in this case was silent as to whether discussions would be conducted. Where an RFP is silent on discussions, the agency’s decision to award without discussions is unobjectionable.

MSCK also objected to the Air Force’s evaluation of past performance. The company complained that the Air Force had erred in finding some of its reference merely relevant or somewhat relevant.

GAO, however, found that he record supported the Air Force’s assessments. Stated simply, MSCK’s proposal did not clearly communicate how the identified projects met the solicitation’s requirements. As an example, GAO noted that MSCK submitted a reference for a project on an a base in Ohio. But there was no indication of whether the work involved remote locations, facilities that required  security clearance, or waterfront projects. Instead of providing specific detail on its past projects, MSCK offered generic statements. Given that an agency is given broad discretion in evaluating the merits of past performance, GAO found the assessment unobjectionable.

MSCK is represented by Robert M. Moore, Matthew C. Long, and Rachel E. Bauer of Moore & Lee, LLP. The intervenor, Defender Contracting & Construction is represented by Nilson M. Goes. The agency is represented by Lieutenant Colonel Christopher M. Wu and Isabelle P. Cutting of the Air Force. GAO attorneys Sarah T. Zaffina and Jennifer D. Westfall-McGrail participated in the preparation of the decision.

GAO - Midnight Sun-Centennial Kirratchiaq JV, LLC