Janico Building Services, B-290683, July 1, 2002

Matter of: Janico Building Services
File: B-290683
Date:      July 1, 2002

Yolanda Harris for the protester.

Michele S. Pavlak, Esq., Defense Logistics Agency, for the agency.

Tania Calhoun, Esq., and Christine S. Melody, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision.

Protest alleging that solicitation included protester's proprietary information and placed protester at a competitive disadvantage is denied where, even assuming that the information was proprietary, its release did not competitively harm the protester.

Janico Building Services protests any award of a contract under request for proposals (RFP) No. SP3100-02-R-0005, issued by the Defense Logistics Agency (DLA) to procure janitorial services for the Defense Distribution Center in San Joaquin, California, at its Sharpe and Tracy sites.  Janico, the incumbent contractor providing these services, argues that it has been placed at a competitive disadvantage because the solicitation improperly included some of the firm's proprietary information.  Janico argues that DLA should cancel the solicitation and obtain the services by exercising the options under its existing contract with the firm.

We deny the protest.

The solicitation requires the successful contractor to provide services under 10 different line items for each contract period:  basic service for the Sharpe site's offices, hallways, and lobbies; basic service for the Tracy site's offices, hallways, and lobbies; basic service for the Sharpe and Tracy site's restrooms, dining areas, breakrooms, and lounges; periodic spray buff, waxing of vinyl floors, stripping/waxing of floors, shampooing of carpet, high dusting, and window cleaning for the two sites; and emergency service for the two sites.  Under schedule B of the RFP, each offeror was required to submit unit and total pricing for each item.  In addition, for each item save emergency service, offerors were required to provide, “for informational purposes only,” their price per square foot, square feet per hour (“production rate”), and hourly rate.  Janico had provided this same type of information under its existing contract for these services.
Section C.10.5 of the RFP listed two rates described as production rates currently used by janitorial employees for some of the work.  Although apparently intended to show the rates in Janico's existing contract, the rates in the RFP did not accurately reflect Janico's rates.   
On May 16, 2002, 3 days after Janico received the solicitation, the firm complained to DLA that the production rate information was proprietary and that its publication allowed its competitors an unfair advantage.  That same day, the contracting officer instructed all prospective offerors to disregard the information as being incorrect and unnecessary for the solicitation.  On May 20, Janico filed an agency-level protest expressing its dissatisfaction with this corrective action.  Janico argued that the agency should cancel the solicitation and obtain the services by exercising the options under Janico's contract.  On June 6, DLA amended the solicitation to specifically provide that the information at issue was “not required and is deleted in its entirety as the figures provided are not correct.”  Amend. 1 at 7.  The agency-level protest was denied and Janico filed the instant protest raising the same arguments. 
We have recognized the right of a firm to protect its proprietary data from improper exposure in a solicitation in the context of a bid protest.  The Source, B-266362, Feb. 7, 1996, 96-1 CPD ¶ 48 at 2; Ingersoll-Rand Co., B-236391, Dec. 5, 1989, 89-2 CPD ¶ 517 at 2.  Where a protester alleges that proprietary information was improperly disclosed, the record must establish that the protester was competitively prejudiced by the release before we will sustain a protest.  Rothe Dev., Inc., B-279839, July 27, 1998, 98-2 CPD ¶ 31 at 2-3; Ursery Cos., Inc., B-258247, Dec. 29, 1994, 94-2 CPD ¶ 264 at 2.  The possibility of competitive prejudice may not be established on the basis of speculation.  Rothe Dev., Inc., supra, at 3; JL Assocs., Inc., B-239790, Oct. 1, 1990, 90-2 CPD ¶ 261 at 4-5. 
In the case at hand, even if we assume that production rates are proprietary information, we fail to see how Janico was competitively disadvantaged here.  First, the information in the RFP was not correct.  Second, it did not purport to cover all line items.  Third, DLA took action, both orally and in writing, to neutralize any competitive advantage by advising prospective offerors to disregard the information as being incorrect.  As a result, the effect of the release here on Janico's competitive position is speculative at best and, therefore, provides no basis for sustaining the protest.  Rothe Dev., Inc., supra, at 4; Ursery Cos., Inc., supra, at 3. 
Moreover, the case cited by Janico to argue that DLA is required to exercise the options under its contract, To the Secretary of the Air Force, B-165542, July 11, 1969, 49 Comp. Gen. 29, is inapposite here.  Unlike in that case, DLA did not use Janico's production rates to define its needs and in no sense can be said to have misappropriated the data.  See White Mach. Co., B-206481, July 28, 1982, 82-2 CPD ¶ 89 at 3 (noting that a protester would be entitled to a sole-source award only if the agency required a product which was proprietary to the protester and the agency had misappropriated the protester's proprietary data by using it to develop its specifications).  As a result, the principal purpose of the recommended sole-source award in To The Secretary of the Air Force--to prevent the agency from violating the protester's proprietary rights--would not be served by compelling the agency to exercise Janico's options here.  We note that the alternative recommendation made in that case, the cancellation of the solicitation and reissuance without using the protester's data, is effectively what DLA has accomplished here by amending the solicitation to remove the protester's data and inform offerors that it was erroneous.
The protest is denied.
Anthony H. Gamboa
General Counsel