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MASAI Technologies Corporation - B-298880.3, B-298880.4 (Sept. 10, 2007)



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MASAI Technologies Corporation - B-298880.3, B-298880.4 (Sept. 10, 2007)

MTC argues that, by virtue of this performance of other contracts, Denysys had unequal access to information that gave it an unfair competitive advantage. It is well-settled that an offeror may possess unique information, advantages and capabilities due to its prior experience under a government contract--either as in incumbent contractor or otherwise; further, the government is not necessarily required to equalize competition to compensate for such an advantage, unless

there is evidence of preferential treatment or other improper action. See FAR § 9.505-2(a)(3); Crux Computer Corp., B-234143, May 3, 1989. The existence of an advantage, in and of itself, does not constitute preferential treatment by the agency, nor is such a normally-occurring advantage necessarily unfair. Crofton Diving Corp., B-289271, Jan. 30, 2002. The responsibility for determining whether an OCI exists, and to what extent the firm should be excluded from the competition, rests with the contracting agency, SRS Techs., B-258170.3, Feb. 21, 1995, Where an agency has, in fact, given thorough, documented consideration to an offeror’s activities and their potential to create OCIs, we will not substitute our judgment for the agency’s conclusions drawn from such a comprehensive review, provided the conclusions are otherwise rational and reasonable. Specifically, the contracting officer performed an analysis of the work that would be required under the solicitation at issue. The contracting officer then turned to documenting an extensive review regarding the activities previously performed by Denysys and its subcontractors, and MTC and its subcontractors, under prior contracts. In this regard, the contracting officer noted that the TEWLS system is comprised of software owned by SAP AG and that, in performing its prior contracts, neither Denysys nor its proposed subcontractors have been materially involved in development or customizing the TEWLS system, since that function is performed by SAP itself; that Denysys and its subcontractors have not had a role in developing the requirements for the solicitation at issue; that neither Denysys nor its subcontractors have had access to any underlying software code configuration for TEWLS; that neither Denysys nor its subcontractors provided technical direction for TEWLS; and that neither Denysys or its subcontractors have been involved in any discussions where contract sensitive information has been discussed. We have reviewed the entire record, including documentation of the contracting officer’s review and analysis of the offerors’ prior activities, and conclude that the agency’s review was thorough and comprehensive; in this regard, MTC has not identified any material flaw in the agency’s review.


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