Olivia LynchPayal Nanavati

In AlliantCorps, LLC, B-415744.2, the Government Accountability Office (GAO) denied a protest by AlliantCorps, LLC (Alliant) alleging violations of the Procurement Integrity Act (PIA) by the Department of the Navy (Navy) following Alliant’s prior protest of a task order award to DKW Communications, Inc. (DKW).  Alliant asserted that DKW improperly received Alliant’s bid and proposal information when its proposed subcontractor’s labor rates were furnished to DKW “at the direction of the Navy.”  GAO found that the facts asserted could not form the basis of a PIA violation because the employees voluntarily disclosed their salary information to DKW.

The Navy initially awarded the task order seeking software maintenance services to DKW.  As part of its transition effort, DKW sent an email to Navy personnel providing a link to DKW’s employment application website.  After the Navy provided Alliant with its debriefing, Navy personnel forwarded DKW’s email soliciting employment applications to personnel working on the incumbent contract for Alliant’s proposed subcontractor.  Alliant subsequently protested the evaluation underlying the award challenging the Navy’s past performance evaluation and discussions, which prompted the Navy to take corrective action to clarify the solicitation and make a new source selection decision.

A week later, Alliant notified the contracting officer of the alleged PIA violation.  Alliant filed its protest within ten days of the agency amending the solicitation, issuing evaluation notices to Alliant and DKW, and requesting revised proposals.  It is unclear from the GAO decision whether the agency responded to the PIA allegation.

Alliant argued that the Navy’s email encouraging incumbent employees to apply for positions resulted in virtually all incumbent personnel who worked for Alliant’s proposed subcontractor to divulge their salary information to DKW.  In particular, Alliant pointed out that the Navy added “For immediate action!!!!” to DKW’s original email.  Alliant asserted that if DKW revised its price on the basis of the self-disclosed incumbent personnel salaries, Alliant’s initial cost advantage over DKW would be eroded in corrective action.

GAO dismissed Alliant’s protest finding that the PIA’s prohibition applies to federal government officials or those acting on behalf of federal government officials with respect to a federal agency procurement.  Specifically, because the incumbent contractor employees are not federal government officials (or acting on behalf of federal government officials), they are not prohibited from disclosing their own salary information.  Thus, the protest lacks a sufficient factual basis to support a claim of a violation of the PIA, even if the agency allegedly “directed” the disclosure by forwarding the application email.

As a footnote point, GAO also noted that when Alliant claimed that DKW had “knowingly obtained bid and proposal information in violation” of the PIA, Alliant did not allege facts establishing that DKW “knowingly” obtained bid or proposal information nor had it explained how “post-award acceptance of employment applications” could run afoul of the PIA.

This case speaks directly to a situation that is not uncommon for contractors: a non-incumbent wins a contract and has the unenviable task of transitioning some or all of the incumbent staff within the transition deadline imposed by the contract or its own proposal.  Meanwhile, the incumbent (who will likely receive any information provided to its employees from the new contractor) may be trying to preserve its incumbent advantage while drumming up viable protest grounds to obtain a 100-day CICA stay of performance, at a minimum, if not a reversal of the award decision.  The incumbent and new contractor have directly competing motivations and tensions may run high.  Despite these competing pressures, this case suggests that GAO will hold the line against contractors attempting to shoehorn typical transition activities into violations of the PIA.