Protests arguing the agency improperly waived the awardee’s organizational conflicts of interest are denied, where the agency’s waiver met the requirements of the FAR; and protest the agency improperly released the incumbent’s pricing as part of the independent government cost estimate is denied, where the incumbent knew of the release of the information but did not protest until after award; and protest that the agency failed to mitigate the alleged bias of an evaluator is denied, where the evaluator recused himself before the evaluation of final proposal revisions, and where the record lacked any evidence of actual bias.
In a series of consolidated protests, CACI Inc.-Federal and General Dynamics One Source LLC challenged the U.S. Special Operations Command’s award of an IT services task order to Jacobs Technology Inc. Both CACI and GDOS alleged that Jacobs had disqualifying organizational conflicts of interest that the agency waived improperly. CACI also protested that the agency’s release with the solicitation of the independent government cost estimate, which was based on CACI’s incumbent pricing, violated the Procurement Integrity Act. CACI further protested that the agency failed to adequately mitigate alleged bias by one of the technical evaluators.
The agency used a series of contracts to support its information technology enterprise, known as the SITEC I contracts, which were divided into functional areas called towers. CACI, GDOS, and Jacobs all held SITEC I contracts performing a separate tower. In this procurement, the agency sought to consolidate most of the SITEC I requirements into a single task order known as SITEC II enterprise operations and maintenance.
Under its SITEC I contract, Jacobs had access to performance information for other contractors; as a result, its contract included a clause that applied uniquely to Jacobs stating that its access to information created an OCI under FAR Subpart 9.5, and that Jacobs would be ineligible for further SITEC awards for an identified subset of SITEC towers. The clause could be waived if the agency determined it was in the government’s best interest to do so.
In corrective action taken in response to earlier protests, the agency investigated allegations of Jacobs’ alleged OCIs. The agency concluded that Jacobs did not have an impaired objectivity OCI, because Jacobs’ SITEC I performance would not require it to evaluate any of the SITEC II proposals or the performance of any SITEC II contractors. The agency also determined that Jacobs did not have a biased ground rules OCI because its SITEC I contract did not require it to develop any of the ground rules or requirements for the SITEC II awards. Finally, the agency determined that although Jacobs had access to certain nonpublic information about the performance of some SITEC I contracts, there was no unequal access to information OCI because none of the information provided Jacobs with a competitive advantage in the SITEC II competition.
In addition, the agency issued a waiver of the OCI rules for this procurement. The waiver stated that although there were no actual OCIs, any unidentified residual OCIs were waived because they were immaterial to the SITEC II procurement. After CACI and GDOS filed the protests at issue here challenging the waiver, the agency issued a supplemental waiver to cover all allegations in the protests.
CACI and GDOS both argued that Jacobs had multiple disqualifying OCIs, and that the agency improperly waived the OCIs. CACI and GDOS alleged that the agency’s evaluation of potential OCIs was incomplete and unreasonable, and that the agency’s OCI waiver and supplemental waiver did not comply with the FAR. CACI and GDOS alleged that the waivers improperly relied on the agency’s conclusions about the merits of the protests.
However, GAO found that the waivers did not rely on the agency’s view of the merits of the protests, but instead waived any OCIs regardless of the merits. The protesters also argued that the waivers were not in the best interest of the government, but GAO found that the agency reasonably determined that the waivers were in the government’s best interest by opening the competition to additional competition. CACI and GDOS also alleged that the OCI clause in Jacobs’ SITEC I contract prohibited it from competing for the SITEC II awards. GAO found that the government properly waived the clause, as allowed by the clause itself. GAO found no basis to sustain the protests of the agency’s OCI investigations or the waivers.
CACI also argued that the agency improperly disclosed CACI’s proprietary pricing information for its incumbent contract when it included the IGCE in the solicitation. The IGCE, in a hidden worksheet within a Microsoft Excel workbook, included password-protected data used to establish the IGCE, which CACI alleged was based on its SITEC I pricing. When several offerors, including CACI, notified the contracting officer that they had been able to access the IGCE worksheet, the agency worked to determine whether any of the offerors had accessed the password-protected information supporting the IGCE. Determining that no offeror had done so, the agency concluded that the unintentional release of the IGCE supporting information did not violate the PIA.
To further alleviate any concern, the agency released the IGCE to all offerors, without the supporting data. CACI alerted the agency that it believed that the released IGCE contained data that was derived from CACI’s proprietary information and that disclosure was improper. The contracting officer determined there had been no PIA violation. However, CACI did not protest the release of the information until filing the instant protest. GAO held that, regardless of whether there was any PIA violation, CACI should have filed its protest at the time the agency notified CACI that it had determined there was no PIA violation. GAO dismissed the protest as untimely.
CACI also alleged that the agency failed to properly address the bias of one of the technical evaluators. During earlier corrective action, the agency investigated whether CACI employees had improperly used information from the agency’s secret internet protocol network to support its earlier protest. Among those investigating the allegation was the lead member of the technical evaluation team. Although the agency ultimately determined that CACI may have violated agency policies by accessing the SIPR network information, the violation merited no further action by the agency. Nevertheless, before the evaluation of final proposal revision, the TET lead recused himself from further evaluations to avoid the appearance of any bias.
CACI argued that the TET lead’s involvement in the investigation, and the fact that the investigation did not lead to any sanction against CACI, showed that the TET lead was biased against CACI. GAO held that, in the absence of any clear and convincing evidence of bad faith on the part of the government, CACI’s allegations carried little weight. Further, the fact that the TET lead recused himself before the evaluation of the final proposal revisions showed that CACI could not have suffered any alleged bias by the evaluator. GAO denied the protest.
CACI, Inc.-Federal is represented by Terry L. Elling, Gregory R. Hallmark, Richard O. Duvall, and Elizabeth N. Jochum of Holland & Knight LLP. General Dynamics One Source, LLC is represented by Michael D. McGill, Thomas L. McGovern, III, Brendan M. Lill, and Christine Reynolds of Hogan Lovells US LLP. Jacobs Technology Inc. is represented by Brian P. Waagner, Hal J. Perloff, Steven A. Neeley, and Emily A. Constantine of Husch Blackwell LLP.
The government is represented by Lieutenant Colonel C. Taylor Smith, Jason R. Smith, and James E. Durkee of the Department of the Air Force. GAO attorneys Jonathan L. Kang and Laura Eyester participated in the preparation of the decision.
