(sections deleted)

Disclosure of OSI's Information

OSI asserts that the agency's release of its pricing and all offerors' discussion information to AMSEA was improper and tainted--or gave the appearance of tainting‑‑the competition. In OSI's view, AMSEA's changed FPR prices evidenced possible use of this information and the agency relied on insufficient evidence in concluding that AMSEA had not used this information to its competitive advantage. OSI concludes that the agency's decision to proceed with the competition was unreasonable and asserts that the agency should terminate AMSEA's contract, cancel the RFP, and re-compete its requirements.

The disclosure of source selection information, including an offeror's price, during the course of a procurement is improper and the agency may take remedial steps, including canceling the procurement, if it reasonably determines that the disclosure harmed the integrity of the procurement process. Information Ventures, Inc., B‑241441.4, B-241441.6, Dec. 27, 1991, 91-2 CPD para. 583 at 4-5. Where an agency decides that no remedial steps are necessary, we will sustain a protest based on the improper disclosure only where the protester demonstrates that it was in some way competitively prejudiced by the disclosure. Kemron Envtl. Servs., Inc., B-299880, Sept. 7, 2007, 2007 CPD para. 176 at 2.

While OSI makes numerous assertions in support of its claims, the record reflects that the protester was not competitively prejudiced by the release of information. For example, OSI notes that AMSEA lowered its prices in six categories that were the subject of discussion questions asked of all offerors--insurance, support of government personnel on the Marine Corps ship, and four transition rate categories. Each question was asked in terms of the offeror's failure to meet a requirement or confirmation of its understanding of the pricing categories. OSI asserts that these questions would reasonably lead AMSEA to believe that the offerors' initial prices indicated a lack of understanding, and thus lead it to reduce its own prices. OSI Comments at 8. However, as found by the contracting officer, there is nothing in the record to indicate that AMSEA used any of the released information as the basis for changing its pricing, and AMSEA provided a reasonable, detailed explanation for each change. In this regard, based on its decision to absorb more risk, AMSEA [deleted], allowing it to reduce various [deleted] rates. FPR Analysis of Procurement Impact of Disclosure, at 3. AMSEA explained that its [deleted] on the Marine Corps ship was based on RFP amendment 0014, which designated the subsistence for these personnel as a reimbursable expense instead of being included in its fixed-price per diem. Id. at 4. AMSEA explained that its reduction in [deleted] rates was based on its reliance on historical data from previous experience. Id. at 4-6. In accepting AMSEA's explanations for its FPR changes, the contracting officer considered the fact that--with limited exceptions--there was no disclosure of offerors' specific prices in any of the challenged areas, and AMSEA's price position (fourth lowest price) did not change from its initial proposal to its FPR. Id. at 3-6.

Apart from its assertion that AMSEA would more likely have used its historical data to arrive at its initial--rather than final--pricing, OSI provides no basis for questioning AMSEA's explanations. Meanwhile, we think it is significant that AMSEA's FPR price advantage (post-disclosure) over OSI (8.5% lower) was only slightly less than its price advantage in the initial evaluation (8.8% lower); OSI does not explain, and it is not clear to us, why knowledge of a competitor's significantly higher price would lead an offeror to lower its price further. See Health Net Fed. Servs., LLC, B‑401652, Oct. 13, 2009, 2009 CPD para. 213 at 6; Kemron Envtl. Servs., Inc., supra, at 4. We conclude that the agency reasonably determined that AMSEA's price changes were based on its business judgment, changes to the RFP, and its reliance on its own historical data, rather than on the disclosed information. Accordingly, we find that the agency reasonably concluded that disclosure of the information did not result in competitive prejudice to OSI.

OSI asserts that cancellation of the RFP and elimination of AMSEA are required because of the "appearance that the integrity of the procurement process was compromised and unreliable." OSI Comments at 10. However, as indicated, we will sustain a protest based on an inadvertent disclosure of information only where it is shown to have harmed the protester. It is undisputed that the disclosure of OSI's information was inadvertent, and that the agency and AMSEA proceeded appropriately once the disclosure was discovered. Since, as discussed above, we find that OSI was not competitively prejudiced by the disclosure, there is no basis for us to sustain the protest and recommend the suggested corrective action.  (Ocean Ships, Inc., B-401526.4, April 21, 2010)  (pdf)

The agency's decision to limit the scope of its corrective action was reasonable. While our Office had not issued a decision or recommended any corrective action, NARA took corrective action to remedy problems identified by our attorney in the ADR conference regarding the past performance evaluation and, at the same time, decided to obtain updated information in the single area where it appeared reasonably necessary. In this regard, LB&B had attempted to substitute some of its proposed key personnel after it received the original award, and CESI had protested this as a matter of "bait and switch." While this ground of protest did not appear meritorious, in view of the passage of time since the submission of the offerors' last proposal revisions, the contracting officer concluded that it would be beneficial to the agency and fair to all offerors to obtain, and to base the re-evaluation on, updated key personnel and subcontractor information. Agency Report (AR) at 4; Contracting Officer's Statement at 2. We find nothing unreasonable in this determination, since the apparent premises underlying it-that the delay resulting from the protest well may have affected the availability of the originally-proposed key personnel, and that the evaluation should be based on currently-available key personnel to the extent possible--appear valid. The same considerations do not appear to have applied to other areas of the proposals. In this regard, prior to deciding to limit the scope of the corrective action, the contracting officer consulted with the TEP and confirmed that no other aspects of the submitted proposals needed updating. AR at 4; Contracting Officer's Statement at2. The agency's approach to determining the appropriate corrective action here reflected its sensitivity to the fact that LB&B's prices had been revealed when the original award was made. While it may have been within the agency's broad discretion to permit price revisions without regard for creation of an auction, the agency was not precluded from taking this consideration into account; there was nothing improper in the agency's choosing a more limited approach to avoid creating a competitive advantage that unquestionably would inure to the benefit of the protester and other offerors if price revisions were allowed. See Rel-Tek Sys. & Design, Inc.--Modification of Remedy , supra , at 5. (Consolidated Engineering Services, Inc., B-293864.2, October 25, 2004) (pdf)

Where, as here, an agency has improperly conducted discussions with only one offeror after receipt of proposals, reopening the competition and seeking another round of amended proposals is an appropriate way to remedy the underlying deficiency and permit offerors a fair opportunity to compete.  International Res. Group, B-286683, Jan. 31, 2001, 2001 CPD ¶ 35.  The  disclosure of pricing and other information in another offeror's proposal, as here, is permissible because the possibility that the contract may not have been awarded based on a true determination of the most advantageous proposal has a more harmful effect on the integrity of the competitive procurement system than the fear of an auction; the statutory requirements for competition take priority over any possible constraints on auction techniques.  Federal Sec. Sys., Inc., supra, at 4.  Accordingly, the agency's corrective action of disclosure and placing the offerors on an even footing, and providing them with an equal opportunity to compete by submitting new proposals is unobjectionable here.  (Networks Electronic Corporation, B-290666.3, September 30, 2002)  (pdf)

Where agency took corrective action in response to an earlier protest by amending the solicitation and reopening discussions, the prior disclosure of protester's prices and the request for final proposal revisions did not create an improper auction.  (Clearwater Instrumentation, Inc., B-286454.2, September 12, 2001)

Turning first to whether Lockheed Martin should obtain ManTech’s price information, the court agrees with ManTech that the pricing information contained in its proposal is fundamentally different from what it received during the debriefing.  (Mantech Telecommunications and Information Systems Corp, v. U.S. and Lockheed Martin Services, Inc., No 00-579C, March 30, 2001)