TITLE: B-299888, Accent Service Company, Inc., September 14, 2007
BNUMBER: B-299888
DATE: September 14, 2007
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B-299888, Accent Service Company, Inc., September 14, 2007

   Decision

   Matter of: Accent Service Company, Inc.

   File: B-299888

   Date: September 14, 2007

   Dan Yasui, for the protester.

   Allison M. Grace, Esq., and Tracy M. Humphrey, Esq., Department of the
   Navy, for the agency.

   Paul N. Wengert, Esq., and Ralph O. White, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protest is denied where agency properly concluded that agency employee had
   not violated procurement integrity provisions by escorting representatives
   of a potential competitor on a site visit, which included a brief stop at
   the office of the protester's on-site manager, and a limited disclosure to
   the visitors about the firm's incumbent contract staffing.

   DECISION

   Accent Service Company, Inc., a small business, protests the actions of
   the Naval Facilities Engineering Command, Department of the Navy, during a
   procurement under request for proposals (RFP) No. N40085-06-R-1335 for
   janitorial services at the Naval Support Activity in
   Mechanicsburg, Pennsylvania. Accent objects that its confidential
   proprietary information was disclosed to prospective competitors, in a
   breach of procurement integrity, and that the Navy has failed to take
   sufficient remedial measures.

   We deny the protest.

   The Navy issued the RFP on May 9, 2007, as a competitive 8(a) set-aside,
   seeking proposals to provide janitorial services under a combination
   firm-fixed and indefinite-quantity contract for a 1-year base period and
   four 1-year options. RFP at 44, 56. Accent is the incumbent contractor.

   The protest alleges that the Navy caused Accent to disclose proprietary
   information about its approach to performing the incumbent contract, which
   Accent argues will be useful to its competitors in the pending
   competition. Specifically, Accent alleges that on June 4, the Navy's
   contract surveillance representative (CSR) brought two individuals to the
   office of Accent's on-site manager. Accent alleges that the CSR did not
   identify the two visitors as potential competitors, and that the group
   "engaged . . . [Accent's] Manager in a discussion surrounding how the
   current contract was being performed." Ultimately the discussion included
   the fact that Accent employed workers in two shifts, and "an approximate
   manning structure for each shift." Altogether, the discussion lasted less
   than 15 minutes. Protest at 2. Accent complains that only the following
   day did the firm learn from the CSR that the visitors were representatives
   of a potential competitor. Id.

   The Navy's account of these events is very similar, but differs in a few
   material areas. The Navy's account is also bolstered by a declaration from
   the CSR. The Navy admits that on June 4, the CSR brought two
   representatives of a potential competitor to see various areas, including
   the on-site manager's office space, but asserts that Accent's manager
   greeted the visitors and introduced herself, and the visitors did
   likewise--with both stating their names and company affiliation. The Navy
   states that when the visitors left the office after about 2 minutes,
   Accent's manager followed them out of her office, and "a discussion of the
   current contract's manning structure and shifts ensued" for less than 15
   minutes. Agency Report (AR), at 3. On June 5, Accent complained to the
   Navy in writing that this (and at least two other alleged disclosures)
   constituted violations of procurement integrity. Protest at 2.

   Upon receipt of Accent's complaint, the contracting officer (CO) for this
   procurement, as well as a second CO and Navy legal counsel, reviewed the
   allegations. After concluding that no violation of procurement integrity
   had occurred, the CO advised Accent, by letter dated June 12, "that the
   competitive integrity of the procurement process has not been compromised
   and that the information exchanged will not provide any advantage" to any
   competitor. AR, Tab 5, Letter from CO to Accent, June 12, 2007, at 1.

   Accent's protest rests on three arguments: (1) the CSR violated
   procurement integrity by escorting a competitor to an on-site meeting with
   Accent's manager on June 4; (2) the on-site visit provided to a single
   competitor showed favoritism; and (3) the on-site visit (and resulting
   exchange of information about staffing) provided "one potential offeror .
   . . information that wasn't made available to all the other potential
   offerors." Protester's Comments at 1-2. Accent claims that the Navy should
   have resolved its complaint by canceling the solicitation and initiating a
   new procurement using different procurement personnel.[1]

   As a preliminary matter, we note that Accent does not identify the
   specific staffing information it alleges was provided during the June 4
   meeting, other than describing the information as its "approximate manning
   structure," Protest at 2, or "current level of service," Protester's
   Comments at 1. In addition, Accent alleges only in general terms that this
   information provided its competitor with insight into Accent's proposal
   strategy for the pending RFP. In this regard, Accent hypothesizes that
   this offeror could gain a competitive advantage by assuming that Accent
   will similarly staff the work under the pending RFP. Id. at 1.

   The Navy responds that the CSR did nothing improper by providing the tour,
   while Accent's manager, in contrast, volunteered the limited staffing
   information at issue here. The Navy also argues that, in any event, the
   work under the pending solicitation differs sufficiently from the
   incumbent contract that Accent was not harmed by any limited disclosure
   its manager offered. AR at 9. Moreover, the Navy argues that the
   information was ultimately neither contractor bid or proposal information
   nor source selection information, as those terms are defined in the
   applicable statutory provisions and implementing regulations. See
   41 U.S.C. sect. 423(f) (2000); Federal Acquisition Regulation (FAR)
   sect. 3.104-1. As support, the Navy cites case precedents in which the
   release of the incumbent contractor's staffing did not violate procurement
   integrity: Avtel Servs., Inc. v. United States, 70 Fed. Cl. 173, 195
   (2006) (finding that "much of the information on current staffing levels
   can be found in the public domain" or revealed through site visits to
   government facility), appeal dismissed, No. 2006-5060, 2007 WL 2363341
   (Fed. Cir. Aug. 21, 2007); Rothe Dev., Inc., B-279839, July 27, 1998, 98-2
   CPD para. 31 at 3 (protest denied where disclosure of incumbent staffing
   that government official derived by conducting "mental headcount" of
   contractor staff could not be considered a trade secret).

   We find no basis to question the Navy's actions here.[2] The information
   disclosed, as described by the protester, did not constitute contractor
   proposal information, source selection information, or a
   competition-sensitive trade secret.[3] Moreover, even assuming the facts
   are as Accent alleges, it is inconsistent for the protester to claim on
   the one hand that general information about its current staffing levels
   was considered confidential, while also acknowledging that its own on-site
   manager voluntarily disclosed them.[4] In our view, the Navy's response to
   the protester's allegations was reasonable, and consistent with its
   statutory and regulatory obligations. 41 U.S.C. sect. 423(e)(3) (2000 &
   Supp. IV 2004); FAR sect. 3.104-7.

   The protest is denied.

   Gary L. Kepplinger
   General Counsel

   ------------------------

   [1] With respect to Accent's complaint about other disclosures, the agency
   responded substantively to each of those allegations in its report, but
   Accent did not answer those issues in any specific way in its comments.
   Instead Accent answers that its protest was "primarily" based on the June
   4 visit. Protester's Comments at 1. Since the protester has failed to
   respond to the Navy's substantive responses on those issues, we consider
   them abandoned. MFVega & Assocs., LLC, B-291605.3, Mar. 25, 2003, 2003 CPD
   para. 65 at 4.

   [2] In response to a specific declaration, signed by the CSR, contesting
   fundamental aspects of Accent's depiction of the events on June 4, Accent
   has relied only on arguments by its president (who does not claim to have
   been present on June 4). Thus, Accent has presented no statement by anyone
   claiming to have first-hand knowledge of these events to counter the
   Navy's explanation.

   [3]Since, in our view, the information here was not improperly disclosed,
   we need not resolve the factual dispute over whether the visitors
   identified either themselves or the firm they represented when they met
   the protester's on-site manager.

   [4] The procurement integrity provisions exclude from their coverage "a
   contractor . . . disclosing its own bid or proposal information or the
   recipient from receiving that information." 41 U.S.C. sect. 423(h)(2); FAR
   sect. 3.104-4(e)(1).