BNUMBER:  B-271823
DATE:  August 1, 1996
TITLE:  IGIT, Inc.

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Matter of:IGIT, Inc.

File:     B-271823

Date:August 1, 1996

Paul H. Schramm, Esq., and Daniel R. Schramm, Esq., Schramm & Pines, 
L.L.C., for the protester.
Lynn H. Patton, Esq., and Christopher Solop, Esq., Ott & Purdy, for 
Penn Enterprises, Inc.; Jesse W. Rigby, Esq., Clark, Partington, Hart, 
Larry, Bond, Stackhouse & Stone, for Crown American Laundry Services, 
Inc.; and Harold W. Robertson, for Robertson & Penn, Inc., the 
intervenors.
Col. Nicholas P. Retson, and Maj. Michael J. O'Farrell, Jr., 
Department of the Army, for the agency.
Ralph O. White, Esq., and Christine S. Melody, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protest challenging contracting officer's decision to exclude 
protester from a competition because the protester possessed a page 
from the installation's solicitation register which included a 
lump-sum government estimate for the cost of the solicited work is 
sustained where there is no basis in the record to support a 
conclusion that the protester acted improperly in obtaining the 
document--even though the document should have been returned to the 
contracting officer--and where the information at issue could be 
provided to the other offerors to ameliorate any competitive advantage 
obtained by the protester with little damage to the integrity of the 
procurement.

DECISION

IGIT, Inc. protests its exclusion from a competition for laundry and 
dry cleaning services at Fort Leonard Wood, Missouri, under request 
for proposals (RFP) No. DABT31-95-R-0017, issued by the Department of 
the Army.  IGIT challenges as unreasonable the agency's decision to 
exclude it from the competition due to its possession of an agency 
document showing the lump-sum government estimate of the cost for 
these services.

We sustain the protest.

BACKGROUND

IGIT is the incumbent contractor currently providing laundry and dry 
cleaning services at Fort Leonard Wood under a contract awarded 
January 31, 1995, using sealed bidding procedures.  Although IGIT's 
initial contract was awarded for a period of 1 year with four 1-year 
options, the Army decided shortly after award to refrain from 
exercising the options.[1]  Instead, the Army issued a new 
solicitation for these services on December 10, 1995.  Proposals in 
response to the RFP were required by March 28, 1996.

By letter dated March 4, 1996, IGIT's African-American president and 
owner, Mr. Dewell Reeves, complained to his congressional 
representative that the Army's decision not to exercise the options in 
IGIT's laundry services contract reflected a pattern of ongoing bad 
faith and racial bias on the part of contracting personnel at Fort 
Leonard Wood.  Mr. Reeves appended to his letter a page from Fort 
Leonard Wood's solicitation register, an internal agency document, to 
demonstrate that the decision not to exercise the options was made 
within weeks after the initial contract award.[2]  The document, as 
provided to the congressman, contained one line of information showing 
the solicitation number; a short description of the requirement 
("laundry"); the status of the procurement ("preparing RFP"); a 
lump-sum figure (entitled "estimate"); and two dates representing 
internal agency milestones in the preparation of the solicitation.  
The document contained no markings indicating that it should be 
treated as confidential.  It was dated August 18, 1995.  

The contracting officer at Fort Leonard Wood first learned of IGIT's 
letter to its congressman--and IGIT's possession of the lump-sum 
government estimate--on or about April 4, approximately 1 week after 
the receipt of initial proposals, when the installation's contracting 
personnel were provided the letter and its attachments with direction 
to prepare a draft reply to the congressional inquiry that followed 
receipt of the letter.  Between April 4 and April 12, several 
contracting personnel at Fort Leonard Wood attempted to ascertain how 
IGIT came into possession of both the page from the solicitation 
register and the two internal memoranda prepared by the installation's 
Small and Disadvantaged Business Utilization (SADBU) specialist.[3]  
By letter dated April 12, the contracting officer disqualified IGIT's 
proposal from further consideration in the ongoing competition.  The 
letter, delivered by hand in a face-to-face meeting, justified the 
exclusion as follows:

     "Your Congressional inquiry . . . contained an excerpt of this 
     directorate's solicitation register, which is not releasable to 
     the general public.  The register contains information developed 
     by [Directorate of Contracting] personnel, and includes 
     [g]overnment estimates of individualized procurement actions.

     "Your possession of the government estimate clearly establishes 
     an appearance and perception that you had privileged information 
     which gave you an apparent competitive advantage over the other 
     offerors."

During this meeting, the Director of Contracting asked Mr. Reeves how 
he obtained the page from the solicitation register.  Mr. Reeves 
explained that the document appeared taped to the front door of the 
laundry site in July 1995, and that his secretary found it upon 
arriving at work.  Handwritten notes from the meeting by the Director 
of Contracting also reflect that Mr. Reeves stated he believed the 
information was provided to him in order to let him know that there 
would be a new solicitation and that the Army would not be exercising 
the options in his contract.  

By letter dated April 19, IGIT protested to our Office, complaining 
that its exclusion was made in bad faith in retaliation for Mr. 
Reeves' efforts to bring his claim of racial discrimination to the 
attention of his congressional representative.

DISCUSSION

An agency's decision to exclude an offeror from a competition in order 
to remedy a problem related to the integrity of a particular 
procurement requires a balancing of competing interests set forth in 
the Federal Acquisition Regulation (FAR).  On the one hand, 
contracting officers are granted wide latitude in their business 
judgments to safeguard the interests of the United States in its 
contractual relationships.  FAR  sec.  1.602-2; Compliance Corp., B-239252, 
Aug. 15, 1990, 90-2 CPD  para.  126, aff'd, B-239252.3, Nov. 28, 1990, 90-2 
CPD  para.  435.  On the other hand, the same section of the FAR requires 
contracting officers to ensure impartial, fair, and equitable 
treatment of all contractors.  FAR  sec.  1.602-2(b); KPMG Peat Marwick, 
B-251902.3, Nov. 8, 1993, 93-2 CPD  para.  272, aff'd, Agency for Int'l 
Dev.; Development Alternatives, Inc.--Recon, B-251902.4; B-251902.5, 
Mar. 17, 1994, 94-1 CPD  para.  201.

A contracting officer may protect the integrity of the competitive 
procurement system by disqualifying an offeror from a competition 
where the firm may have obtained an unfair competitive advantage, even 
if no actual impropriety can be shown, so long as the determination is 
based on facts and not mere innuendo or suspicion.  NKF Eng'g, Inc. v. 
U.S., 805 F.2d 372 (Fed. Cir. 1986); Holmes & Narver Servs., 
Inc./Morrison-Knudson Servs., Inc. a joint venture; Pan Am World 
Servs., Inc., B-235906; B-235906.2, Oct. 26, 1989, 89-2 CPD  para.  379, 
aff'd, Brown Assocs. Management Servs., Inc.--Recon., B-235906.3, Mar. 
16, 1990, 90-1 CPD  para.  299; Laser Power Technologies, Inc., B-233369; 
B-233369.2, Mar. 13, 1989, 89-1 CPD  para.  267.  We will overturn such a 
determination only when it is shown to be unreasonable.  Defense 
Forecasts, Inc., 65 Comp. Gen. 87 (1985), 85-2 CPD  para.  629; RAMCOR 
Servs. Group, Inc., B-253714, Oct. 7, 1993, 93-2 CPD  para.  213.

In reviewing the reasonableness of an exclusion decision, we examine 
both the nature of the information to which the offeror had access, 
Textron Marine Sys., B-255580.3, Aug. 2, 1994, 94-2 CPD  para.  63, and the 
conditions under which access was gained.  KPMG Peat Marwick, supra.  
For example, we consider whether the information at issue is 
cost-related, General Elec. Gov't Servs., Inc., B-245797.3, Sept. 23, 
1992, 92-2 CPD  para.  196; whether the information is proprietary, KPMG 
Peat Marwick, supra; or whether the information is source selection 
sensitive.  Holmes & Narver Servs., Inc./Morrison-Knudson Servs., Inc. 
a joint venture; Pan Am World Servs., Inc., supra.  We also consider 
whether the information was obtained through improper business 
conduct, Compliance Corp., supra, or through more innocuous means, 
such as a Freedom of Information Act (FOIA) request pursued through 
appropriate agency channels.  KPMG Peat Marwick, supra. 

IGIT's Possession of the Government Estimate

The contracting officer concluded here that IGIT's possession of the 
government estimate gave it an apparent competitive advantage over the 
other offerors, and it was IGIT's possession of this estimate that 
formed the basis of the decision to exclude IGIT from the procurement.  
While the Army concedes that the lump-sum government estimate in this 
case was not marked to indicate its confidential nature, it argues 
that the information is not normally given to offerors, and that it 
clearly imparts a competitive advantage when available to only one 
offeror.  We agree.  Given the obvious competitive value of an 
agency's estimate of the cost to perform solicited work, we find 
reasonable the contracting officer's determination that steps were 
necessary to alleviate the competitive advantage to IGIT.  See Holmes 
& Narver Servs., Inc./Morrison-Knudson Servs., Inc. a joint venture; 
Pan Am World Servs., Inc., supra (protest against failure to take 
steps to alleviate an alleged competitive advantage was sustained 
where the awardee had access to the independent government estimate, 
acquisition plan, and evaluation criteria).  Based on our review of 
the record, however, we do not find reasonable the Army's conclusion 
that excluding IGIT from the competition was appropriate or necessary 
to remedy the advantage created by its possession of this information.

Looking first at IGIT's conduct in this matter, we cannot conclude 
that IGIT acted improperly in obtaining the solicitation register.  
Exclusion of an offeror is a more reasonable sanction if the offeror's 
conduct in obtaining a competitive advantage was improper.  See 
Compliance Corp., supra (exclusion based on "industrial espionage" 
involving an attempt to induce an employee of competing offeror to 
sell proposal information); NKF Eng'g, Inc., 65 Comp. Gen. 104 (1985), 
85-2 CPD  para.  638 (exclusion based on the hiring of the contracting 
officer's representative between submission of initial proposals and 
receipt of best and final offers, and a subsequent significant drop in 
that offeror's final price).  In contrast, when the record did not 
show a likelihood of an actual impropriety or conflict of interest, we 
have overturned an agency's decision to exclude an offeror from the 
competition.  See KPMG Peat Marwick, supra.  Here, nothing in the 
record before us contradicts IGIT's explanation for its possession of 
this document--i.e., that it was taped to the door of the laundry 
facility during the summer of 1995, apparently to advise IGIT of the 
agency's decision to resolicit for laundry services rather than 
exercise the existing options.[4]  We, therefore, have no basis to 
reject IGIT's version of events.  

In addition, while we agree with the Army and the intervenors that 
IGIT should have returned the document to the contracting officer, 
IGIT's responses to the Army's questions suggest that it simply did 
not recognize the competitive value of the lump-sum estimate.  IGIT's 
apparent failure to recognize the sensitive nature of the lump-sum 
estimate contained on the solicitation register may be explained by 
the fact that the figure included is essentially IGIT's bid price for 
the existing contract.[5]  On the continuum between improper actions 
such as "industrial espionage" and the more innocuous filing of a FOIA 
request, we consider IGIT's failure to return the page from the 
solicitation register closer to the latter than the former.

Finally, in considering the appropriate remedy for alleviating an 
offeror's competitive advantage, in a case where there is little 
evidence of improper activity, we view exclusion as a severe remedy 
that is reasonable only when other, less drastic, remedies are not 
practicable, or are insufficient.  For example, in a case where we 
sustained a protest on the ground that the awardee had a conflict of 
interest--specifically, the awardee employed a former government 
official with access to restricted information (including the 
government estimate) to help draft the proposal--we expressly rejected 
the remedy of excluding the awardee from the competition and instead 
recommended releasing the restricted information to all the offerors 
and calling for a new round of proposals.  Holmes & Narver Servs., 
Inc./Morrison-Knudson Servs., Inc. a joint venture; Pan Am World 
Servs., Inc., supra.

Here, as in Holmes & Narver, release of the government estimate to all 
offerors is the reasonable remedy for the competitive advantage 
accruing to IGIT.  Although the agency and the interested parties 
argue that the release of the estimate will create an auction, there 
are several factors to suggest that any adverse effect from the 
release of this estimate will be minimal, and will be consistent with 
our prior decisions.  In this regard, we note that the government 
estimate in this case is considerably less detailed than the one 
released in Holmes & Narver, where the estimate included cost 
calculations for each of 27 separate functions.  In addition, the 
estimate here conveys essentially no more information to offerors than 
the release of the contract price when the previous award was made to 
IGIT via sealed bids.  Since the prior price of these services is 
clearly public information, and the difference between the two figures 
is essentially de minimis, we see no serious damage to the integrity 
of the procurement system from the release of this estimate.[6]  Thus, 
under the circumstances here, eliminating IGIT's competitive advantage 
while retaining IGIT as an offeror outweighs the government's interest 
in not appearing to conduct an auction.[7]  KPMG Peat Marwick, supra; 
Holmes & Narver Servs., Inc./Morrison-Knudson Servs., Inc. a joint 
venture; Pan Am World Servs., Inc., supra.

RECOMMENDATION 

We conclude that the decision to exclude IGIT from the competition 
here does not strike a reasonable balance between the agency's 
appropriate recognition of the need to ameliorate the competitive 
advantage arising from IGIT's possession of the government estimate, 
and the requirement to treat IGIT fairly.  Thus, the Army's actions, 
no matter how well-intentioned, violate the mandate of FAR  sec.  1.602 
requiring contracting officers to ensure impartial, fair, and 
equitable treatment of contractors.  We recommend that the Army 
eliminate any competitive advantage given IGIT by providing the 
lump-sum government estimate to all offerors and requesting a new 
round of proposals.  

We also recommend that the protester be reimbursed the reasonable 
costs of filing and pursuing this protest, including attorneys' fees.  
4 C.F.R.  sec.  21.8(d) (1996).  The protester should submit its certified 
claim for protest costs directly to the agency within 90 days of 
receipt of this decision.  4 C.F.R.  sec.  21.8(f)(1).  

The protest is sustained.

Comptroller General
of the United States

1. The written memorandum formally requesting resolicitation of these 
services is dated May 25, 1995.  

2. Other information appended to Mr. Reeve's letter to his 
congressional representative will be discussed below.

3. These memoranda were also attached to the letter to the 
congressman.  Neither document contains procurement sensitive 
information, although one contains sensitive internal information 
providing some support for the protester's views regarding his 
allegations of racial bias at the installation.

4. For the record, while we have no rebuttal of the protester's 
version of how it received the page from the solicitation register, 
the agency report's legal memorandum does express doubts about the 
protester's explanation.  The report points out that:  (1) Mr. Reeves 
has claimed to have a source in the Directorate of Contracting; (2) 
Mr. Reeves states that the SADBU gave him the memorandum for the 
record that provides some support for his claims; and (3) certain IGIT 
documents were found on the SADBU's computer.  Thus, the Army implies 
that the SADBU provided the page from the solicitation register, and 
explains that it has requested a Criminal Investigative Division 
review of whether the SADBU was the protester's source.  However, the 
SADBU denies providing the document to IGIT, and the doubts expressed 
in the agency report amount only to suspicion.

5. Although the two figures are very similar, they are not identical; 
nonetheless, the approximate 2.5-percent difference in the figures 
suggests that IGIT's successful bid price in the most recent 
competition provided the basis for the estimate.

6. Since the previous procurement was awarded using sealed bidding 
procedures, under which bids are opened publicly, IGIT's previous 
price for these services is publicly available.  FAR  sec.  14.101.

7. We need not reach the protester's allegation that racial bias was, 
in part, a motivating factor in this case as we sustain the protest 
and recommend that IGIT be permitted to participate in the 
procurement.