As to the solicitation, Kerr does not allege that the disclosure of Kiewit’s price information to the SSB on July 9, 2009 was in violation of any provision set forth or referenced in that document. As mentioned supra, the solicitation briefly discusses the evaluation of price proposals, and states that “only those proposals that are found to be technically acceptable will be evaluated on price.” AR at 23. Kiewit’s initial technical proposal had been found acceptable, and the Corps was then free, by the terms of the solicitation, to evaluate Kiewit’s price for the contract before entering into discussions with Kiewit. The solicitation further states that “[p]rice will also be a factor in establishing the competitive range prior to discussions (if held).” Id. The letters to offerors inviting them to discussions meetings noted that these offerors were “in the competitive range.” Id. at 318, 321, 325, 329. The discussions with Kiewit, which included the topic of Kiewit’s price, were permissible under the solicitation even if those discussions were held in the presence of two members of the SSB.

It is a closer question as to whether the presence of two SSB members at the meeting discussing price concerns with Kiewit was permissible under the SSP. It is clear that price information was to be withheld from the SSB until initial technical evaluations were completed. AR at 350. The SSP could also be read to require that price information not be released to SSB members, even if discussions were opened with offerors, until the final technical evaluations of proposals had been completed. Id. (stating that the SSB Chairperson “[e]nsures the price proposals are not released to anyone conducting the evaluation of technical proposals until that evaluation is completed and the technical evaluation findings are documented”). Assuming, arguendo, that the SSP was violated when Kiewit’s price information was discussed on July 9, 2009, the court must determine whether that was a significant and prejudicial error justifying judicial intervention.

As this court has stated, the requirements of a Source Selection Plan do not usually establish enforceable rights for a disappointed bidder. See ManTech Telecomms. & Info. Sys. Corp. v. United States, 49 Fed. Cl. 57, 67 & n.15 (2001) (stating that a “Source Selection Plan has little, if any, bearing in defining the rights of the parties under [a] Solicitation” and generally does not afford a protestor rights before this court) (citations omitted). A violation of a Source Selection Plan would, however, constitute a significant error if it “deprived [a] plaintiff of the opportunity to have its proposal considered fairly and honestly.” United Int’l Investigative Servs., Inc. v. United States, 41 Fed. Cl. 312, 322 (1998). The court sees no such error here.

The presence of SSB members during the discussion of one offeror’s price information was, in the context of this procurement, a de minimis error of no consequence. Grumman Data, 88 F.3d at 1000 (noting that de minimis errors in the procurement process do not justify relief). There is no evidence in the record that the SSB considered Kiewit’s price information when they were weighing whether or not Kerr’s technical proposal was acceptable. The SSB consistently found fault with Kerr’s jetty stone placement plan, citing generally the same concerns, both before and after Kiewit’s price information was disclosed to two members of the SSB. There is no indication that Kiewit’s price information, in any way, affected Kerr’s technical evaluation.

Finally, even if some violation of law or regulation occurred when the SSB members were made privy to Kiewit’s price information, plaintiff has made no allegation that it was specifically harmed by this disclosure. As the Federal Circuit has recently stated, a bid protestor must show how the government’s error “interfered with its ability to receive the contract award.” Labatt Food Serv., Inc. v. United States, 577 F.3d 1375, 1380 (Fed. Cir. 2009). Kerr’s chances of winning this contract were unaffected by the disclosure of Kiewit’s price information to the SSB. In other words, Kerr has shown no prejudice related to this alleged flaw in the procurement. For these reasons, the court cannot justify any intervention in this procurement based on the disclosure of Kiewit’s price information to SSB members.  (Kerr Contractors, Inc., v U. S. and Kiewit Pacific Co, No. 09-523C, October 13, 2009) (pdf)

U. S. Court of Federal Claims - Listing of Decisions