On February 10, 2021 Inmarsat Government Inc. (Inmarsat) filed a protest, which the Government Accountability Office (GAO) sustained in part on May 21, 2021. See Inmarsat Government, Inc., B-419583; B-419583.2, May 21, 2021, 2021 CPD ¶ 215 at 1. Specifically, the GAO found that the Defense Information Systems Agency (DISA) failed to sufficiently mitigate the competitive harm resulting from DISA’s inadvertent release of Inmarsat’s non-commercial solution pricing. Inmarsat also protested DISA’s alleged failure to mitigate the harm it caused by releasing additional pricing information, as well as DISA’s decision to exclude past performance as an evaluation factor in the solicitation. The GAO denied these protest grounds, determining that DISA’s release of additional proprietary information did not result in competitive harm to Inmarsat and that DISA’s decision to exclude past performance was reasonable.
In 2016, DISA awarded Inmarsat a five-year indefinite-delivery, indefinite-quantity (IDIQ) contract for worldwide commercial telecommunications services, including:
- Satellite capacity for mobile and fixed satellite transceivers on manned and unmanned maritime, airborne, and ground platforms
- Commercial teleport services
- Backhaul connectivity
- Monitoring and control
- Operations for the Department of the Navy’s Military Sealift Command
Originally named the Commercial Satellite Services Contract I (CSSC I), the protest at issue concerned the follow-on contract, referred to as CSSC II. Under CSSC II, DISA sought to procure services identical to those procured under CSSC I for the Department of the Navy related to bandwidth and non-bandwidth services under a similar contract line item number (CLIN) structure.
CSSC II draft solicitation
On September 21, 2020, DISA posted a pre-solicitation announcement and draft solicitation for the CSSC II procurement to SAM.gov. Incorporated into the draft solicitation was a pricing workbook. DISA informed offerors that they could use the information contained in the pricing workbook to calculate their proposed fixed prices for certain commercial satellite services, including line-item pricing for non-bandwidth services and bandwidth services. The draft solicitation pricing workbook contained the Independent Government Cost Estimate (IGCE) for the effort. Importantly, the draft also erroneously included Inmarsat’s pricing information from CSSC I, which had been used to calculate the IGCE for CSSC II. This information was proprietary to Inmarsat and should not have been released with the draft solicitation. A day after DISA posted this information, Inmarsat notified the agency that its detailed pricing information had been released. DISA promptly removed the draft solicitation, including the pricing workbook with Inmarsat’s proprietary information, from SAM.gov. A few days later, Inmarsat informed DISA in writing about the improperly-released information and requested that DISA investigate the reason for the release as well as any resulting competitive harm to the company. Based upon the agency record produced during the protest, DISA failed to take any action beyond removing the draft solicitation and proprietary pricing workbook from SAM.gov.
DISA’s actions and the CSSC II source selection
DISA eventually published the solicitation for CSSC II several months later, beginning the source selection process. Through this solicitation, DISA contemplated awarding a contract with a 10-year period of performance and an anticipated maximum value of $979,000,000. About a month after the solicitation was released, but before proposals were due to be submitted, another potential offeror on the CSSC II procurement informed DISA in writing that one of its employees had located the draft solicitation pricing workbook (i.e., Inmarsat’s proprietary information) and the methodology for calculating the IGCE. The company requested that given “the extraordinary competitive utility of the information” DISA should either substantially amend the solicitation or cancel it. Notwithstanding both this request and Inmarsat’s initial request for DISA to investigate, DISA made only minimal changes to the CSSC II solicitation.
Competitive harm related to non-bandwidth pricing release
In its first protest ground, Inmarsat asserted that DISA failed to mitigate the competitive harm DISA caused by inadvertently releasing Inmarsat’s proprietary pricing. The GAO concluded that Inmarsat was competitively harmed by DISA’s release of its non-bandwidth pricing and sustained the protest accordingly. First, the GAO noted that the disclosure of proprietary or source selection information to an unauthorized person during the course of a procurement is improper. The GAO also noted that where an agency chooses not to cancel the procurement after such a disclosure, the GAO will sustain a protest when the protester can demonstrate that a) the released information created an unfair advantage, or b) that the protester was otherwise competitively prejudiced by the disclosure. In this case, DISA did not dispute that it inadvertently released Inmarsat’s non-bandwidth pricing for CSSC I in its CSSC II draft solicitation. It was also undisputed that the non-bandwidth pricing released was detailed, comprehensive, and in many cases represented Inmarsat’s current prices for those services. Despite being informed of this release, DISA did no more than remove the draft solicitation from SAM.gov and make some “minor or cosmetic” changes to the non-bandwidth CLIN structure. The GAO found these changes insufficient to mitigate the competitive harm DISA had caused.
Remaining protest grounds denied
Inmarsat raised two additional protest grounds that the GAO denied. First, it claimed that the release of its bandwidth pricing (as opposed to the non-bandwidth pricing discussed above) resulted in competitive harm. The GAO disagreed. Based upon the information in the record, the GAO decided that there was insufficient evidence to support the allegation that Inmarsat’s bandwidth pricing had been released. The GAO only found that DISA had released some 2018 bandwidth pricing information for certain regions, which was determined to be stale at the time of release. The GAO concluded that any release of Inmarsat’s bandwidth pricing did not result in competitive harm.
Second, Inmarsat alleged that DISA unreasonably decided not to evaluate past performance during the course of the source selection. The GAO noted that FAR Part 15 (which applied to this procurement) provides that past performance need not be evaluated if the contracting officer can document the reason it is not an appropriate evaluation factor for the acquisition. In this instance, DISA had documented its determination in writing and adequately explained why evaluating past performance was not appropriate. The GAO denied this protest ground, determining that the allegation merely reflected Inmarsat’s disagreement with DISA’s decision rather than identified any source selection error DISA made.
The GAO recommended that DISA take immediate corrective action by either canceling the solicitation or substantially revising it such that the harm could be mitigated. The GAO also recommended that Inmarsat be reimbursed its costs for filing and pursuing the protest, including reasonable attorneys’ fees.
This GAO decision is an important reminder that agencies are obligated to protect proprietary information provided to them by their contractors, and that failure to do so may not only result in significant competitive harm to aggrieved contractors, but can also bring a procurement to a grinding halt. Incumbent companies participating in source selections have a powerful tool in the ability to protest an agency’s carelessness in handling business-sensitive information. When their sensitive information is released, contractors should sound the alarm and seek redress.