Incumbent Contractor Thinks the Energy Department Released its Proprietary Data

The Department of Energy issued a request for offers (RFO) for integrated facilities management services. Included in that RFO was information related to the incumbent contract and contractor such as listings of facilities management personnel with details concerning their names, positions, basis of pay (i.e. Service Contract Act (SCA) wage employees, collective bargaining agreement employees or salaried/exempt employees), brief descriptions of their duties and work locations.

Centerra Integrated Facilities Services, LLC, the incumbent contract for part, but not all of the work, filed a GAO bid protest arguing that the Energy Department improperly published its proprietary information as part of the solicitation and that such release will cause it competitive harm in its effort to win the solicited requirements.

GAO didn't buy Centerra's argument.

The GAO recognizes the right of a firm to protect its proprietary data from improper release in a solicitation. However, the record must show (i) that the information is proprietary in nature, (ii) that it was submitted to the Government in confidence, (iii) that its development involved significant time and expense, (iv) that it includes material or concepts that could not be independently obtained from publicly available literature or common knowledge and (v) that the protester will be competitively prejudiced by the release of the information.

In its decision, the GAO discussed its findings with regard to each of these conditions. For example, it noted that the information was not proprietary. Of Centerra's 32 employees, nine were listed as key employees whose names and positions were publicly available in the existing contract. The remaining 23 employees were SCA or collective bargaining agreement employees who's wages were also publicly available. Centerra further argued that its staffing strategy was exposed and this provided insight into how it configured its staff to perform the predecessor contract. The GAO found that the information provided by the Energy Department did not include the number of hours worked by each employee, whether they are full-or part-time, or how the staff is actually configured on a day-to-day basis.

Finally, GAO noted that the contemplated contract is estimated to be four times that of Centerra's existing contract as the Energy Department is consolidating facilities management services at all of its Pacific Northwest facilities while Centerra's existing contract involves one headquarters building in Portland, OR. Thus, the limited data pertaining to Centerra's work "cannot provide any realistic competitive advantage to any other firm in light of the vastly different scale and complexity of the solicited requirements.