Protest alleging the agency unreasonably evaluated awardee’s proposed data rights is denied in part and dismissed in part. The protester argued the awardee didn’t propose sufficient data rights. This argument was based on a misreading of the awardee’s proposals. The protester contended the agency disparately evaluated each offeror’s approach to data rights, but the evaluation was based on material differences between proposals. Further, GAO determined that the protester’s other data rights challenges required interpretation of a license agreement between the awardee and a third party. GAO will not consider the terms of agreements between private parties, so it dismissed the other data rights arguments.
Background
The Federal Communications Commissions (FCC) issued a solicitation seeking the creation and delivery of a broadband internet availability set. The solicitation identified three different tiers of data rights offerors could propose.
After reviewing several proposals, the FCC awarded the contract to CostQuest Associates, Inc. An unsuccessful offeror, LightBox Parent, LP protested, alleging, among other arguments, that the FCC unreasonably evaluated CostQuest’s proposed data rights.
Legal Analysis
GAO Jurisdiction Over Data Rights Issues
GAO will not review disputes between private parties that do not involve improper government action. Thus, GAO will generally not consider the terms and applicability of private agreements between parties. Here, GAO noted, many of LightBox’s arguments implicated the terms of a license agreement between CostQuest and a third party. While GAO could exercise jurisdiction over questions concerning the agency’s evaluation of CostQuest’s data rights, it would not consider any questions that broached interpretation of the license agreement.
Evaluation of Data Rights
- CostQuest Offered Sufficient Data Rights – LightBox contended that the FCC should have concluded that CostQuest could not furnish the data rights it offered, Specifically, LightBox argued the CostQuest had proposed to use one of LightBox’s sources, but that the agency should have known from LightBox’s proposal, that no one but LightBox could provide that source. GAO, however, found that LightBox had misread CostQuest’s proposal. While CostQuest had identified LightBox as a data source, CostQuet had not proposed to furnish the LightBox data to the agency.
- FCC Didn’t Disparately Evaluate Data Rights Agreements – LightBox noted that the FCC had assessed a weakness to its proposal for a license agreement that was not finalized but had not similarly penalized CostQuest for n license that had also not been finalized. GAO reasoned that the FCC’s concern with LightBox’s license was not that it wasn’t finalized but that the company had not meaningfully explained the state of negotiations. CostQuest, on the other hand, explained that it had negotiated the terms of the agreement and provided summary of those terms
Awardee Didn’t Misrepresent Data Rights
LightBox asserted that CostQuest had made material misrepresentation in its proposal by omitting language from its licensing agreement that would have rendered the data unsuitable for the FCC. GAO, however, found that these arguments hinged on an interpretation of CostQuest’s license agreement with a third party. Because resolution of the argument was inseparable from the terms of a private agreement, GAO dismissed the arguments for lack of jurisdiction.
Past Performance Evaluation Was Reasonable
LightBox raised various challenges to the past performance evaluation—e.g., that the FCC ignored a preference for past government performance and did not appropriately consider the size of CostQuest’s references. GAO found that these arguments amounted to disagreement with the agency’s evaluation conclusions.
LightBox is represented by Edward Arnold and Bret Marfut of Seyfarth Shaw LLP. The intervenor, CostQuest, is represented by William O’Reilly and Anuj Vohra of Crowell & Moring LLP. The agency is represented by Derek A. Yeo, Jessica E. Easton, and Chin Yoo of the Federal Communications Commission. GAO attorneys Michael Willems and Edward Goldstein participated in the preparation of the decision.
