GAO: Agency Could Disclose Incumbent’s Staffing Numbers

In a solicitation seeking the award of a follow-on services contract, a procuring agency could validly disclose the number of incumbent personnel performing a particular function.

In a recent bid protest decision, the GAO held that this information was not proprietary or confidential to the incumbent, and that the incumbent was not competitively harmed by the release of the information.

The GAO’s decision in Centerra Group, LLC, B-412271.2, B-412271.3 (Feb. 26, 2016) involved a NAVFAC solicitation for material support services at Guantanamo Bay, Cuba.  Centerra Group, LLC held the incumbent contract.

After reviewing competitive proposals, NAVFAC made award to Centerra.  An unsuccessful offeror filed a GAO bid protest challenging the award.  In response, NAVFAC took corrective action and amended the solicitation.  After the amended solicitation was released, NAVFAC issued a series of written questions-and-answers, addressing inquiries from prospective offerors.  Among the Q&As was the following exchange:

5. Do all hospital employees need a CAC [Department of Defense Common Access Card]?

ANSWER: No, there are currently three (3) CAC holders to access Government computer[s] to manage hospital supplies/materials/equipment via Defense Medical Logistics Standard Support (DMLSS) and Defense Property and Accounting System (DPAS) data base systems.

Centerra filed a pre-award protest with the GAO.  Centerra contended that this answer (and two others) improperly disclosed information about Centerra’s staffing under the incumbent contract, resulting in competitive harm to Centerra.

The GAO disagreed.  It wrote that “the agency’s answers do not provide information about Centerra’s performance, but rather, they provide factual answers to questions about the minimum requirements of the solicitation.”  With respect to Question 5 specifically, the GAO cited a previous decision in which it had held that “the number of personnel performing a services contract monitored by the government . . . cannot be protected as a trade secret.”  The GAO continued:

Furthermore, the information disclosed did not reveal what labor categories, mix, or rates would be appropriate, or how Centerra would calculate its profit, overhead and management costs–important elements of price, and in some instances technical approach.  Thus . . . the agency’s release of the information here may, at best, operate to normalize to a small degree the competition so that all offerors will have a very rough estimate as to how many individuals will be needed for contract performance with regard to one specific area of performance.  As such, even if the information disclosed could be considered proprietary, the effect of releasing the information on Centerra’s competitive position under the terms of the RFP is speculative at best and provides no basis to sustain the protest.

The GAO denied Centerra’s protest.

Incumbent contractors would, understandably, prefer that their competitors have as little information as possible about the incumbent contract.  And while the government ordinarily is precluded from disclosing an incumbent’s proprietary and confidential information, not all information about the incumbent performance is considered proprietary.  As demonstrated by the Centerra Group decision, the number of personnel used to perform a government services contract typically is not proprietary, and the procuring agency may share such information with the incumbent’s competitors.