Quoted

Jul 5, 2016

Jeff Ifrah Discusses Unusual GAO Objections Regarding Multi-billion Dollar Contract Bid

A security services contractor hit the U.S. Government Accountability Office with a lawsuit Wednesday in D.C. federal court to block the agency from releasing an unredacted bid protest decision containing sensitive information about the company it says could compromise its future competitive prospects.

Torres Advanced Enterprise Solutions LLC alleges that the GAO twice rejected every redaction the contractor proposed for a June 7 bid protest denial of Torres AES’ challenge of an up-to-$10.2 billion multicontractor U.S. Department of State security project. That rejection contradicts U.S. government policies protecting sensitive information, according to the complaint.

“The company asked us to redact past performance information and pricing information they did not want to be made public,” Kenneth E. Patton, managing associate general counsel for procurement law with the GAO’s Office of the General Counsel, said in an email Thursday. “We do not redact such information.”

According to the complaint, the GAO said the information was not entitled to protection in part because the bid protest upheld the contract award to Torres AES’ competitors and thus did not tell the State Department to reconsider. That means the information Torres AES wants kept secret would not impact “the competitive process in this specific matter,” the GAO said, according to the complaint.

But that is not how it works, the suit counters.

“Nothing in the applicable regulation or bid protest guidelines limits the protection of protected information to a specific matter,” Torres AES says. “The Federal Acquisition Regulations (‘FAR’) specifically recognize the need for protection of confidential information beyond the life of a single solicitation or protest.”

That is in part because contractor assessments can be applied toward future award decisions, according to the complaint.

An attorney for Torres AES on Thursday called the GAO’s reticence to redact highly unusual.

“It’s pretty critical to the integrity of the process,” said A. Jeff Ifrah of Ifrah PLLC.

Ifrah told Law360 that the information Torres AES wants kept secret is highly sensitive and applies broadly to future embassy protection contracts.

Nor did any of the other parties to the protest, including the government itself, object to the redactions, according to Ifrah, who said he was “dumbfounded” by the GAO’s objections.

“These are very traditional redactions,” Ifrah said.

The case is Torres Advanced Enterprise Solutions LLC v. U.S. Government Accountability Office, case number 1:16-cv-01381, in the U.S. District Court for the District of Columbia.