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Major error by contracting officer -- what happens now?


Chris

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Good evening all,

I work in Business Development for a contractor who regularly does business with the government.  Earlier this year, we submitted a proposal for a large prime contract (FFP Construction, Part 15, BVTO), and today we received a letter from the contracting officer opening discussions (without mentioning a competitive range, fwiw) which included Evaluation Notices (ENs) and instructions for submittal of our Final Proposal Revision.

Upon reading the ENs, I realized that the CO had sent us some ENs meant for a competitor for one of the Evaluation Criteria, which mentions the competitor by name and identifies some key characteristics of the competitor's strategy, some of their proposal strengths and weaknesses, and other procurement sensitive information.  I immediately notified the proposal manager and our executives of error and advised that we must immediately inform the CO what has happened. 

My question is: has anyone here experienced such a mistake before; and what will become of this Source Selection?  I imagine that the whole thing may be rubbished now, or is there a way that this procurement goes forward?

Advice welcomed.

-Involuntary Cheater

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4 hours ago, Chris said:

My question is: has anyone here experienced such a mistake before; and what will become of this Source Selection?  I imagine that the whole thing may be rubbished now, or is there a way that this procurement goes forward?

In my experience, which involved the similar situation a few times over a 39 year career what will happen lays in the hands of the agency.  Your proposed action in contacting the government is most appropriate and what you imagine is probably right on.  However I also experienced where the procurement continued on its path.  What occurred with the aggrieved contractor, was how I will say, worked out, but not without a little sweat and tears.

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8 hours ago, Chris said:

My question is: has anyone here experienced such a mistake before; and what will become of this Source Selection?  I imagine that the whole thing may be rubbished now, or is there a way that this procurement goes forward?

Yes, I have experienced such a mistake. I have no idea what will become of the source selection, neither does anybody else here. It probably depends on the nature of the material that was disclosed to you.

Let your imagination run wild. What will be will be.

But your company better notify the CO. RIGHT NOW!

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suggest you consult an attorney to see what you should do to protect your company against a potential lawsuit by the other company for failing to limit who sees it, especially if the information that came into your hands might be proprietary, a trade secret or other protected intellectual property. Or, unfair competition. 

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<edited on Vern Edwards's admonishment>

Is there any reason it would be inappropriate to ask if our information had been leaked to a competitor?  I can't see why it would be, but want to know if I'm not taking something obvious into account.

@Neil RobertsI'm curious why you would recommend informing the competitor. 

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3 hours ago, Chris said:

Is there any reason it would be inappropriate to ask if our information had been leaked to a competitor? 

No.

I would ask, but they may not know.

This kind of thing happens. Make a record of it, follow the CO's instructions, document that you did, and go on about your business. Just continue to compete as best you can. I don't think you need to consult an attorney, but do as you please.

You asked for advice. Here is some. You are talking too much in public. That's unintelligent. Publishing your story here won't make friends for your company in the agency. Do you really think no one knows who you are, who your company is, and who the agency is? How will this help your company?

And in your opening post you called yourself a "cheater."

Stupid.

 

 

 

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On 7/27/2021 at 10:55 PM, Chris said:

Upon reading the ENs, I realized that the CO had sent us some ENs meant for a competitor for one of the Evaluation Criteria, which mentions the competitor by name and identifies some key characteristics of the competitor's strategy, some of their proposal strengths and weaknesses, and other procurement sensitive information.

Here is the reason, Chris. You are in receipt of this and it is at a minimum competitive sensitive information you should not have, know of or use. There should be a discussion between your attorney and theirs to verify what was received and how this competition can be resolved in a satisfactory manner between the two parties and the CO. Hope this can be done. Sounds serious to me.     

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@Vern EdwardsI believe we're doing everything right as best we can.  I did ask for advice, and I appreciate that which I've received.

Of course I want to help my company, but I also want to do what I can to get the CO out of a bind and keep their acquisition on track.  I don't believe anyone's been called out or identified here.

And you know as well as everyone that the salutation in the OP was ironic and sardonic, but if you want to twist it so that you can end your day by calling me stupid, you do you.  But I do appreciate your advice, as well.

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7 hours ago, Chris said:

...but I also want to do what I can to get the CO out of a bind and keep their acquisition on track. 

And you do that by starting a thread at a widely-read social media page that you entitle: "Major error by contracting officer" and by identifying the acquisition as being one for a large construction job in which discussions are currently underway, and in which the agency used the device known as an "EN" (Evaluation Notice), which is not a FAR term and is not used by all agencies. And you say that the information you were given "identifies some key characteristics of the competitor's strategy" and "and other procurement sensitive information." And at one point you related to the world the CO's instructions to you (which you have since deleted).

That's helping the CO get out of a bind?

Brilliant.

At least "Chris" is not your real name. Right?

 

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An article about one of the most famous cases of the time regarding proprietary information in the hands of a competitor, and the bidding process. The penalty appears to have included company suspension, taking away previous awards and criminal charges.  https://www.pillsburylaw.com/images/content/2/6/v2/2654/0E71DCF8C5D6174617EC8FAB2117C197.pdf

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42 minutes ago, Neil Roberts said:

An article about one of the most famous cases of the time regarding proprietary information in the hands of a competitor, and the bidding process. The penalty appears to have included company suspension, taking away previous awards and criminal charges. 

@Neil Roberts That was a case of massive industrial espionage. It was not a case of a contractor receiving information mistakenly provided to it by the government. Referral to it in the context of this thread is misleading.

See:

Zucker, The Boeing Suspension: Has Increased Consolidation Tied the Department of Defense's Hands, 2004-APR Army Law. 14, esp. the section entitled, "A Case Study: The Boeing Suspension." Here, from the article, is a quote that briefly describes what happened:

Quote

According to an affidavit submitted in support of the criminal complaint, the misconduct started when William Erskine, a Boeing EELV engineer, recruited and hired Kenneth Branch, a Lockheed Martin EELV scientist and engineer, for the purpose of obtaining the Lockheed Martin EELV proposal. In exchange for delivering the proposal, Branch began working at Boeing in January 1997 “as a senior engineer/scientist earning $77,000 a year, not including overtime.” 

There are extensive materials available online about Boeing's misconduct in the Evolved Expendable Launch Vehicle (EELV) acquisition and the prosecutions and private litigation that followed. See, e.g.:

https://www.justice.gov/archive/criminal/cybercrime/press-releases/2003/branchCharge.htm

If you want to read about inadvertent disclosure of source selection information, see the DOD IG's Report on the JEDI Cloud Procurement, DODIG-2020-079, specifically, pages 6, 39-40, and 82-90.

 

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Sure, an "honest mistake" causing the situation is different than an intentional act as to the punishment and/or risk, but not as to doing the right thing, which you have said was to refrain from notifying your competitor that you are in possession of its proprietary information through no fault of your own.

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My two cents:  Notifying the contracting officer and following his or her instructions is the right thing to do.  Notifying the other party is not the right thing to do.  If necessary, the contracting officer can give whatever notice is needed to the other party.

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1 hour ago, Neil Roberts said:

Sure, an "honest mistake" causing the situation is different than an intentional act as to the punishment and/or risk, but not as to doing the right thing, which you have said was to refrain from notifying your competitor that you are in possession of its proprietary information through no fault of your own.

@Neil RobertsIf you mean that it would be the right thing for Cliff's company to notify the competitor that the CO sent the government's assessment of its proposal to them, I disagree. Cliff said:

On 7/27/2021 at 10:55 PM, Chris said:

[T]oday we received a letter from the contracting officer opening discussions (without mentioning a competitive range, fwiw) which included Evaluation Notices (ENs) and instructions for submittal of our Final Proposal Revision.

Upon reading the ENs, I realized that the CO had sent us some ENs meant for a competitor for one of the Evaluation Criteria, which mentions the competitor by name and identifies some key characteristics of the competitor's strategy, some of their proposal strengths and weaknesses, and other procurement sensitive information. 

He did not say that they had received the competitor's documents, documents containing proprietary markings. He did not say they had received the competitor's property. What he described receiving was the government's property, its observations and opinions.

The right thing for Cliff's company to do was to notify the CO, which Cliff says they did, and follow the CO's instructions about what to do with the government's documents. The other right thing for them to do is tell Cliff to discuss such matters only with company counsel, not with the world.

Hopefully, we will not hear from Cliff in this thread again.

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On 7/29/2021 at 11:29 PM, Chris said:

but I also want to do what I can to get the CO out of a bind and keep their acquisition on track.

I found the following quote to be interesting.   It is from this https://www.gao.gov/products/b-419583%2Cb-419583.2 which is not on point but yet the quoted information may be helpful to level the discussion in this thread........

"The disclosure of proprietary or source selection information to an unauthorized person during the course of a procurement is improper.  41 U.S.C. § 2102; FAR 3.104; Lion Vallen, Inc., B-418503, B-418503.2, May 29, 2020, 2020 CPD ¶ 183 at 5; S&K Aerospace, LLC, B-411648, Sept. 18, 2015, 2015 CPD ¶ 336 at 8.  Where an agency inadvertently discloses an offeror’s proprietary information, the agency may choose to cancel the procurement if it reasonably determines that the disclosure harmed the integrity of the procurement process.  Kemron Envtl. Servs., Inc., B-299880, Sept. 7, 2007, 2007 CPD ¶ 176 at 2.  Where an agency chooses not to cancel the procurement after such a disclosure, we will sustain a protest based on the improper disclosure only where the protester demonstrates that the recipient of the information received an unfair advantage, or that the protester was otherwise competitively prejudiced by the disclosure.  See Gentex Corp.-Western Ops., B-291793, et al., Mar. 25, 2003, 2003 CPD ¶ 66 at 7-9 (finding no competitive prejudice where agency promptly recalled the inadvertent disclosure, reviewed proposals for use of inadvertently disclosed material, and found no evidence that awardee had used protester’s material in its proposal).

Section 9.505(b)(1) of the FAR provides that an unfair competitive advantage exists where a contractor competing for award of any federal contract possesses proprietary information that was obtained from a government official without proper authorization. Accordingly, an unfair competitive advantage is presumed to arise where an offeror possesses competitively useful nonpublic information that would assist that offeror in obtaining the contract, without the need for an inquiry as to whether that information was actually of assistance to the offeror.  L-3 Servs., Inc., B-400134.11, B-400134.12, Sept. 3, 2009, 2009 CPD ¶ 171 at 17 n.19 (citing Aetna Gov’t Health Plans, Inc.; Foundation Health Fed. Servs., Inc., B-254397.15 et al., July 27, 1995, 95-2 CPD ¶ 129  at 17 n.16; Health Net Fed. Servs., LLC, B-401652.3, B-401652.5, Nov. 4, 2009, 2009 CPD ¶ 220 at 28 n.15."

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That quote provided by Carl is from Immarsat Government, Inc. GAO B-419583, 2021 CPD ¶ 215, May 21, 2021. The following is from the first page of the decision.

Quote

This protest involves the inadvertent disclosure of pricing information contained in the draft RFP... When DISA posted the draft solicitation, in addition posting the IGCE methodology the agency also inadvertently included Inmarsat's incumbent pricing data that was used in formulating the IGCE.

GAO sustained the protest.

For a case in which an agency inadvertently disclosed proprietary information after receipt of proposals, see Kemron Environmental Services, Inc., GAO B-299880, 2007 CPD P 176, September 7, 2007:

Quote

 

Kemron Environmental Services, Inc. protests the award of a contract to WRS Infrastructure & Environment, Inc. under request for proposals (RFP) No. PR–R4–06–10166, issued by the Environmental Protection Agency (EPA) for superfund emergency and rapid response services for the removal of hazardous substances. Kemron argues that, because EPA disclosed certain of its price information to WRS in the course of the procurement, the agency should be required either to cancel the solicitation and resolicit for its needs or award a contract to Kemron.

We deny the protest.
 
***
 
On March 6, 2007, the agency sent each offeror in the competitive range an e-mail containing discussion items to address. On March 7, WRS advised the agency by telephone that it had received Kemron's discussion letter. WRS explained that the company treasurer received the e-mail and started scanning it, but noticed that the letter referred to companies that were not named in its proposal. Agency Report (AR) at 2. At that point, the treasurer looked at the top of the letter and found that it was addressed to Kemron. After telephoning the company president for instructions on how to proceed, he sent the e-mail back to the agency and destroyed all copies. The treasurer advised EPA that he did not recall any specific information from the letter. Subsequently, on March 19, the agency received revised proposals and, on April 5, final proposal revisions (FPR). After evaluating the FPRs, the agency selected the three lowest-priced proposals for award, including WRS's, which was the second lowest priced proposal. Kemron's proposal was fourth-low, and the firm complains that it was harmed by the disclosure of its pricing. (Footnote 1)
 
***
 
EPA reviewed WRS's revised proposal and FPR prior to making its award decisions, found that WRS did not use Kemron's price information, and concluded that cancellation of the RFP thus was not warranted.
 
***
 
Footnote (1). EPA notified Kemron of the disclosure and Kemron expressed concern that it could be competitively harmed as a result, and Kemron and the agency had some discussion about how to remedy the issue before EPA ultimately determined that corrective action was not called for.

 

 
The first paragraph quoted by Carl has appeared, with some variation, in five GAO decisions going back to 2007, including Kemron. Inadvertent disclosure of various kinds of information under various circumstances has been an issue or mentioned in 54 GAO decisions going back to 1963.
 
I did not find any Court of Federal Claims protest decision that involved inadvertent disclosure of either a competitor's proprietary information or of the government's evaluation of a competitor.
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