This article is an excerpt from The Art of Tendering: A Global Due Diligence Guide, which is available for purchase.
In its June 2018 decision in the matter of Archimedes Global, Inc., the U.S. Government Accountability Office (GAO) overruled the government’s disqualification of a bidder after finding that the government made its decision based on innuendo and supposition and in the absence of adequate evidence. The case dealt with a Request for Proposals (RFP) issued by the Department of Homeland Security for management and support services. As the GAO summarized, the complainant, referred to below as AGI, was disqualified from the competition due to concerns of unfair advantage since some of its proposed personnel were already providing services to the government for another company and had access to information that could give the complainant an unfair advantage over its competitors:
Turning to the merits of the protest, the record shows that the agency disqualified AGI because of the contracting officer’s conclusion that AGI may have had access to competitively useful, non-public information that may have been helpful in preparing its proposal. In particular, he concluded that one of the two individuals proposed by the protester, AGI’s intermediate program manager, had the capability to access files on the agency’s computer system that contained competitively useful information, including an independent government estimate prepared in connection with the current acquisition, the statement of work for the current RFP, and agency budgetary information. AR, exh. 10, SSDD, at 5-7; exh. 16, Letter from the Contracting Officer to AGI, Feb. 13, 2018, at 1-3.
However, as the GAO noted, the complainant confirmed to the Department in sworn affidavits that the individuals in question, who were working for a different company at the time, never actually accessed the information in question:
The record also shows that AGI represented in a letter and affidavits submitted to the agency that neither of the Ambit employees that it proposed actually accessed competitively useful information during performance of the Ambit task order. AR, exh. 15, Letter and Affidavits from AGI to the Agency, Jan. 24, 2018. Specifically, the proposed senior program manager represented that he was precluded from accessing competitively useful information on the agency’s computer system because of a firewall implemented by Ambit. Id. at 5-6. The intermediate program manager, for his part, represented that, although theoretically he had access to non-public, competitively useful information, he did not, in fact, access the information during any relevant time. Id. at 8-9.
Further, the GAO found that the government lacked the necessary digital audit trail to verify whether those individuals had accessed the records in question:
In considering the information provided by AGI, the contracting officer queried the agency’s information technology support staff to find out whether the agency’s computer logs showed, one way or the other, whether Ambit’s intermediate program manager actually had accessed the agency’s non-public information. In response to the contracting officer’s query, agency personnel advised that the agency’s logs only went back some 30 days; consequently the agency had no way of determining with certainty whether or not the intermediate program manager actually had accessed the information in question.
The GAO sustained the protest since the Department’s decision was based on innuendo and supposition, rather than demonstrated facts, and was made in the face of sworn contrary assurances provided by the individuals in question:
AGI argues that it was unreasonable for the agency to disqualify it from consideration, principally because the agency’s analysis ignored the fact that the individuals in question are not AGI employees and did not participate in the preparation of AGI’s proposal.
We sustain AGI’s protest. In challenging an agency’s identification of a disqualifying conflict of interest, a protester must demonstrate that the agency’s determination did not rely on hard facts, but instead was based on mere inference or supposition of an actual conflict of interest, or is otherwise unreasonable. VSE Corp., B-404833.4, Nov. 21, 2011, 2011 CPD 268 at 8. Here, we find that the agency’s decision to disqualify AGI is not based on hard facts, but, rather, on innuendo and supposition concerning the activities of the Ambit employees.
Chief among our concerns is the fact that the contracting officer, without any underlying evidence, concluded that, because there was a possibility that the individuals in question may have had access to competitively useful, non-public information, that information necessarily was provided to AGI. However, the record shows that neither individual currently is employed by AGI, and there is no evidence to show that the individuals provided AGI with competitively useful, non-public information, or otherwise participated in preparing the AGI proposal.
On the contrary, the record shows that both individuals currently are employed by Ambit, not AGI. AR, exh. 15, Letter and Affidavits from AGI to the Agency, Jan. 24, 2018, at 7, 10. In addition, both individuals represented under oath that they did nothing more than give AGI permission to propose them for possible positions under the resulting task order being solicited; that they did not participate in proposal preparation activities for, or on behalf of, AGI; and that, by virtue of being bound by nondisclosure agreements, they did not share any information learned while working for Ambit with AGI.
The GAO therefore overruled the exclusion of the complainant from the competition and directed the Department to consider the complainant’s proposal as part of its evaluation process.
As this case illustrates, while public institutions should be careful to guard against unfair advantage, protecting the integrity of the bidding system also calls for an evidence-based decision-making process when considering bidder disqualifications. Where public institutions lack evidence in support of their decisions, those decisions will be hard to defend against challenge.
