MASAI Technologies Corporation vs. The United States – (Nov. 29, 2007 – see GAO case below)
Masai brought this protest in the Ct. of Federal Claims requesting motion for judgment on the administrative record and for preliminary injunction. The Ct. stated that “in the context of “unequal access to information” OCI challenges, courts have examined more broadly: (1) whether an offeror had access to nonpublic information that was unavailable to the protester; (2) whether that nonpublic information was competitively useful in responding to the solicitation; (3) whether, by having unequal access to that information, the awardee was afforded an advantage that was unfair; and (4) whether not having equal access to that information prejudiced the protester. In response to the first GAO bid protest, in which MTC took issue with the participation of BP as a subcontractor to Denysys, the contracting officer took the following actions: (1) he required that all contractors submit an OCI certification; (2) he solicited and received a detailed response to the MTC protest from Denysys; (3) he surveyed three Government technical experts, exploring the potential for an OCI with respect to BP due to its participation in prior contracts; and (4) he interviewed the TEWLS Program Manager and Competency Center Director/Deputy Program Manager. AR 68. In response to the second GAO bid protest, the contracting officer re-investigated the issue whether BP’s participation constituted an OCI. He also analyzed the participation of CompQSoft as a subcontractor to Denysys and analyzed whether MTC’s participation as a prime contractor gave rise to an OCI. The record shows that the contracting officer performed two thorough and comprehensive investigations and carefully documented his conclusion that no OCI existed. The Ct. ruled that the CO’s analysis of the potential for OCI was thorough and thus denied the protest.