Apr 18, 2017

Bid Protests: Incumbent Protests Failure of Navy to Release Incumbent’s Proprietary Data | Centre Law & Consulting in Tysons, VA
Just when you think you have heard it all, along comes the pre-award protest of Fluor Federal Solutions, LLC, B-414223, March 29, 2017.

Fluor alleged that the Department of the Navy, Naval Facilities Engineering Command, solicitation was ambiguous. Fluor claimed that that offerors could not meaningfully price their proposals because of the ambiguous requirement it contained and that proposals received could not be meaningfully compared and evaluated. The interesting quirk was that Fluor was the incumbent, and they wanted to “level the playing field” so that all offerors were bidding to the same requirement and leaving no ambiguity. Fluor’s method of doing so was to have the Navy release Fluor’s proprietary data, after it waived its rights in the data.

The Government Accountability Office (GAO) dismissed this ground of protest. They held that the protester failed to establish that it is an interested party to challenge the lack of data. This is legal speak for saying that Fluor cannot protest on behalf of other potential bidders. Fluor was not prejudiced by the failure of other offerors to see the Fluor proprietary data.

It’s an interesting twist on a protest.
About the Author

Barbara Kinosky Barbara Kinosky
Managing Partner

Barbara Kinosky has more than twenty-five years of experience in all aspects of federal government contracting and is a nationally known expert on GSA and VA Schedules and the Service Contract Act. She has a proven track record of solving complex issues for clients by providing strategic and business savvy advice. Barbara was named a top attorney for federal contracting by Smart CEO magazine in 2010, 2012, and 2015.


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  • Timothy Farris says:

    Not surprised at GAO so ruling. However, I think Fluor could have been seen as having standing as a private attorney general protecting the integrity of the procurement process and, arguably, Fluor could well be damaged by other companies making lower offers that could be well-intentioned without Fluor’s data. Fluor’s obvious fear is that the Government might find such offers acceptable.
    Certainly a strange case!

  • Andy Porter says:

    The real question is why Fluor would file that pre-award protest. It doesn’t seem to make sense unless Fluor felt they would be unsuccessful in their bid for the next contract and somehow wanted to increase the costs proposed by other bidders?