| Matter of: | Janico Building Services |
| File: | B-290683 |
| Date: | July 1, 2002 |
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Yolanda Harris for the protester.
Michele S. Pavlak, Esq., Defense Logistics Agency, for the agency.
Tania Calhoun, Esq., and Christine S. Melody, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest alleging that solicitation included protester's proprietary information
and placed protester at a competitive disadvantage is denied where, even
assuming that the information was proprietary, its release did not competitively
harm the protester.
DECISION
Janico Building Services protests any award of a contract under request for
proposals (RFP) No. SP3100-02-R-0005, issued by the Defense Logistics Agency (DLA)
to procure janitorial services for the Defense Distribution Center in San
Joaquin, California, at its Sharpe and Tracy sites. Janico, the incumbent
contractor providing these services, argues that it has been placed at a
competitive disadvantage because the solicitation improperly included some of
the firm's proprietary information. Janico argues that DLA should cancel
the solicitation and obtain the services by exercising the options under its
existing contract with the firm.
We deny the protest.
The solicitation requires the successful
contractor to provide services under 10 different line items for each
contract period: basic service for the Sharpe site's offices, hallways,
and lobbies; basic service for the Tracy site's offices, hallways, and lobbies;
basic service for the Sharpe and Tracy site's restrooms, dining areas,
breakrooms, and lounges; periodic spray buff, waxing of vinyl floors,
stripping/waxing of floors, shampooing of carpet, high dusting, and window
cleaning for the two sites; and emergency service for the two sites. Under
schedule B of the RFP, each offeror was required to submit unit and total
pricing for each item. In addition, for each item save emergency service,
offerors were required to provide, “for informational purposes only,” their
price per square foot, square feet per hour (“production rate”), and hourly
rate. Janico had provided this same type of information under its existing
contract for these services.
Section C.10.5 of the RFP listed two rates described as production rates
currently used by janitorial employees for some of the work. Although
apparently intended to show the rates in Janico's existing contract, the rates
in the RFP did not accurately reflect Janico's rates.
On May 16, 2002, 3 days after Janico received the solicitation, the firm
complained to DLA that the production rate information was proprietary and that
its publication allowed its competitors an unfair advantage. That same
day, the contracting officer instructed all prospective offerors to disregard
the information as being incorrect and unnecessary for the solicitation.
On May 20, Janico filed an agency-level protest expressing its dissatisfaction
with this corrective action. Janico argued that the agency should cancel
the solicitation and obtain the services by exercising the options under
Janico's contract. On June 6, DLA amended the solicitation to specifically
provide that the information at issue was “not required and is deleted in its
entirety as the figures provided are not correct.” Amend. 1 at 7.
The agency-level protest was denied and Janico filed the instant protest raising
the same arguments.
We have recognized the right of a firm to protect its proprietary data from
improper exposure in a solicitation in the context of a bid protest. The
Source, B-266362, Feb. 7, 1996, 96-1 CPD ¶ 48 at 2; Ingersoll-Rand Co.,
B-236391, Dec. 5, 1989, 89-2 CPD ¶ 517 at 2. Where a protester alleges
that proprietary information was improperly disclosed, the record must establish
that the protester was competitively prejudiced by the release before we will
sustain a protest. Rothe Dev., Inc., B-279839, July 27, 1998, 98-2
CPD ¶ 31 at 2-3; Ursery Cos., Inc., B-258247, Dec. 29, 1994, 94-2 CPD ¶
264 at 2. The possibility of competitive prejudice may not be established
on the basis of speculation. Rothe Dev., Inc., supra, at 3; JL
Assocs., Inc., B-239790, Oct. 1, 1990, 90-2 CPD ¶ 261 at 4-5.
In the case at hand, even if we assume that production rates are proprietary
information, we fail to see how Janico was competitively disadvantaged here.
First, the information in the RFP was not correct. Second, it did not
purport to cover all line items. Third, DLA took action, both orally and
in writing, to neutralize any competitive advantage by advising prospective
offerors to disregard the information as being incorrect. As a result, the
effect of the release here on Janico's competitive position is speculative at
best and, therefore, provides no basis for sustaining the protest. Rothe
Dev., Inc., supra, at 4; Ursery Cos., Inc., supra, at
3.
Moreover, the case cited by Janico to argue that DLA is required to exercise the
options under its contract, To the Secretary of the Air Force, B-165542,
July 11, 1969, 49 Comp. Gen. 29, is inapposite here. Unlike in that case,
DLA did not use Janico's production rates to define its needs and in no sense
can be said to have misappropriated the data. See White Mach.
Co., B-206481, July 28, 1982, 82-2 CPD ¶ 89 at 3 (noting that a
protester would be entitled to a sole-source award only if the agency required a
product which was proprietary to the protester and the agency had
misappropriated the protester's proprietary data by using it to develop its
specifications). As a result, the principal purpose of the recommended
sole-source award in To The Secretary of the Air Force--to prevent the
agency from violating the protester's proprietary rights--would not be served by
compelling the agency to exercise Janico's options here. We note that the
alternative recommendation made in that case, the cancellation of the
solicitation and reissuance without using the protester's data, is effectively
what DLA has accomplished here by amending the solicitation to remove the
protester's data and inform offerors that it was erroneous.
The protest is denied.
Anthony H. Gamboa
General Counsel