WSP USA, Inc.
Highlights
WSP USA Solutions, Inc., of Exton, Pennsylvania, protests its exclusion from the competition under request for proposals (RFP) No. SPE8EJ-23-R-0001, issued by the Defense Logistics Agency (DLA) for the rapid deployment of leased or rented generator sets to support the Federal Emergency Management Agency's (FEMA) disaster relief operations. The protester challenges the agency's decision to exclude WSP from the competition due to organizational conflicts of interest (OCIs) arising from WSP's work under a contract with the U.S. Army Corps of Engineers (Corps) for related services, and argues that the agency conducted a flawed and unreasonable OCI analysis.
Decision
Matter of: WSP USA, Inc.
File: B-422725
Date: October 15, 2024
Amy C. Hoang, Esq., Zachary F. Jacobson, Esq., and Sarah E. Barney, Esq., Seyfarth Shaw LLP, for the protester.
Ashley L. Peskoe, Esq., Defense Logistics Agency, for the agency.
Uri R. Yoo, Esq., and Alexander O. Levine, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest that agency unreasonably excluded protester from competition on the basis of unequal access to information and impaired objectivity organizational conflicts of interest is denied where the contracting officer reasonably concluded that the protester’s performance under a related contract created the appearance of an unfair competitive advantage.
DECISION
WSP USA Solutions, Inc., of Exton, Pennsylvania, protests its exclusion from the competition under request for proposals (RFP) No. SPE8EJ-23-R-0001, issued by the Defense Logistics Agency (DLA) for the rapid deployment of leased or rented generator sets to support the Federal Emergency Management Agency’s (FEMA) disaster relief operations. The protester challenges the agency’s decision to exclude WSP from the competition due to organizational conflicts of interest (OCIs) arising from WSP’s work under a contract with the U.S. Army Corps of Engineers (Corps) for related services, and argues that the agency conducted a flawed and unreasonable OCI analysis.
We deny the protest.
BACKGROUND
DLA Troop Support provides supplies, equipment, and supply-related services to the United States military worldwide and to a number of government partners. Contracting Officer’s Statement and Memorandum of Law (COS/MOL) at 2. Under its construction and equipment supply chain responsibilities, DLA administers the FEMA generator program, which provides for the rapid deployment of leased or rented generator sets to support FEMA’s disaster relief operations. Id.; Agency Report (AR), Tab 1, RFP at 23.
On October 12, 2023, DLA issued the RFP, seeking contractors to supply prime-rated, diesel-powered, leased or rented generators in seven different band sizes and ranges. RFP at 5. The solicitation contemplated the award of at least three fixed-price, indefinite‑delivery, indefinite‑quantity contracts, with post-award competition for delivery orders, for an ordering period of 5 years. Id. The RFP anticipated making awards to offerors whose proposals were the most advantageous to the government, considering three factors: (1) readiness plan; (2) past performance; and (3) price. Id. at 38‑39.
As relevant here, the solicitation provided a notice of potential OCI, which stated as follows:
Notice. The Contracting Officer has determined that this acquisition may give rise to an organizational conflict of interest (OCI). Accordingly, the attention of prospective Offerors is invited to [Federal Acquisition Regulation (FAR)] Subpart 9.5--Organizational Conflicts of Interest. The Contracting Officer shall not award a contract until the Government determines any conflict of interest is reasonably resolved. The Contracting Officer has the sole authority to determine whether an organizational conflict of interest exists and to determine whether the organizational conflict of interest has been reasonably resolved. The OCI plan will not be evaluated as part of mission suitability. However, before being eligible to receive an award, the Offeror shall submit an acceptable OCI plan (including mitigation plans for any identified OCIs). As such, the Government may communicate with any Offeror at any time during the evaluation process concerning its OCI plan.
Id. at 6. The RFP described the nature of the potential OCI in the procurement as “the existence of conflicting roles that might bias a contractor’s judgment or the existence of an unfair competitive advantage.” Id. at 7. The RFP also informed offerors that “[a] [c]ontractor can create or represent an actual or potential [OCI], if the contractor is currently providing support or anticipates support to FEMA and [the Corps] for the following: [Statement of Work]: Generator Sets FEMA.” Id.
In accordance with this notice, the RFP instructed each offeror to assess whether it has any OCIs in connection with the procurement and to inform the agency of any potential OCIs, “including those involving contracts with other Government organizations.” Id. at 7. Each offeror was also directed to “explain the actions it intends to use to resolve any [OCI] it finds in the Government’s assessment and its own assessment.” Id. The RFP stated that if the agency found the proposed action for resolving the OCI to be unacceptable, the agency would provide the reasons for its finding and “a reasonable opportunity [for the offeror] to respond before making a final decision” on the OCI. Id.
WSP submitted a timely proposal in response to the solicitation. COS/MOL at 4. WSP’s proposal included an OCI analysis, in which WSP represented that it “is not aware of any actual or potential OCI’s that would preclude it from receiving a DLA [generator] contract under this Solicitation and competing for task orders.” AR, Tab 6, WSP Proposal at 151. WSP’s OCI analysis also informed the agency that WSP was currently performing as the contractor under the Corps’s Advanced Contract Initiative (ACI), which are four contracts supporting the Corps’s temporary emergency power missions in all Corps and FEMA regions.[1] Id. at 149‑150. WSP, however, concluded that its role as the Corps’s ACI contractor “would not create an unfair competitive advantage OCI for task orders under [the] DLA [generator contract] or an impaired objectivity OCI under the [Corps] ACI contract.” Id. at 151.
After reviewing WSP’s OCI analysis, the contracting officer notified WSP of her finding that “an OCI exists, or at a minimum, the significant appearance of one, and that WSP’s submitted OCI Plan is unacceptable,” and requested a response from WSP. AR, Tab 9, OCI Notice to WSP at 3. In the notice, the contracting officer disagreed with WSP’s OCI analysis and expressed her concern with the “conflicting roles and an opportunity for impaired objectivity during [WSP’s] performance” of the ACI contracts. Id. In addition, the contracting officer noted a “potential unequal access to information [OCI] and an appearance of a conflict of interest, if not actual conflict, at a minimum,” arising from the ACI contractor’s role in relation to the DLA generator contract. Id.
WSP responded to the agency’s OCI notice, disagreeing with the contracting officer’s conclusions and maintaining that “no actual or potential OCIs exist.” AR, Tab 10, WSP Response to OCI Notice at 5. Specifically, WSP stated that, “[b]ased on how the [Corps] ACI contract works,” the contracting officer’s concern about unequal access to information was “not a valid concern.” Id. at 2. WSP also stated that there are “no conflicting roles” and no “opportunity for impaired objectivity” because neither contract requires WSP to provide “management consulting, advisory, and evaluation services requiring impartial and unbiased advice to the Government.” Id. at 4.
After considering WSP’s response, the contracting officer conducted a final OCI analysis and concluded that “an OCI and/or the appearance thereof exists” due to WSP’s “substantial, important, more‑than‑minimal involvement in a disaster response” as the ACI contractor for the Corps. AR, Tab 11, OCI Determination at 4. Based on this conclusion, the contracting officer determined that WSP was not eligible for award and removed WSP from the competition. Id.
On June 25, 2024, the agency notified WSP of the contracting officer’s final OCI determination and the exclusion of WSP’s proposal from the competition. AR, Tab 12, Final OCI Determination Letter at 1. This protest followed.
DISCUSSION
WSP maintains that the decision to eliminate it from the competition was unreasonable. Specifically, the protester contends that the contracting officer’s OCI determination was based on speculation rather than hard facts about either access to competitively useful non-public information or the potential for impaired objectivity as a result of WSP’s performance under the ACI contract. Protest at 13‑23. For the reasons discussed below, we conclude that the contracting officer’s OCI determination and decision to eliminate WSP from the competition were reasonable.
The FAR instructs agencies to identify potential OCIs as early as possible in the procurement process, and to avoid, neutralize, or mitigate significant conflicts so as to prevent an unfair competitive advantage or the existence of conflicting roles that might impair a contractor’s objectivity. FAR 9.501, 9.504(a), 9.505. Our Office reviews an agency’s OCI investigation for reasonableness; where an agency has given meaningful consideration to whether a significant conflict of interest exists, we will not substitute our judgment for the agency’s, absent clear evidence that the agency’s conclusion is unreasonable. Leidos, Inc., B‑417994, Dec. 17, 2019, 2019 CPD ¶ 425 at 8. The identification of conflicts of interest is a fact‑specific inquiry that requires the exercise of considerable discretion. Guident Techs., Inc., B‑405112.3, June 4, 2012, 2012 CPD ¶ 166 at 7 (citing Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1382 (Fed. Cir. 2009)). Once an agency has given meaningful consideration to whether an OCI exists, our Office will not sustain a protest challenging a determination in this area unless the determination is unreasonable or unsupported by the record. MANDEX, Inc., B‑421664 et al., Aug. 16, 2023, 2023 CPD ¶ 201 at 5.
The record here shows that the contracting officer considered the potential OCIs based on unequal access to information and impaired objectivity, arising from WSP’s performance of the ACI contracts supporting FEMA’s temporary emergency power missions. AR, Tab 9, OCI Notice to WSP at 1; AR, Tab 11, OCI Determination at 4. After considering the requirements of the ACI contracts and the instant procurement, as well as “the interplay that will occur during a temporary emergency power . . . mission,” the contracting officer concluded that an OCI or the appearance of an OCI exists. AR, Tab 11, OCI Determination at 2. As explained below, we have no basis to conclude that the contracting officer’s OCI conclusions were unreasonable.
Unequal Access to Information
The protester argues that the agency unreasonably determined that WSP possessed an unequal access to information OCI. An unequal access to information OCI arises where a firm has access to nonpublic information as part of its performance of a government contract, and where that information may provide the firm a competitive advantage in a later competition for a government contract. Systems Made Simple, Inc., B‑412948.2, July 20, 2016, 2016 CPD ¶ 207 at 6. A contracting officer may disqualify a firm from the competition where the firm may have obtained an unfair competitive advantage, even if no actual impropriety can be shown, so long as the determination is based on hard facts, and not mere innuendo or suspicion. Noonan & Assocs., B‑409103, Jan. 10, 2014, 2014 CPD ¶ 29 at 5. Further, even the appearance of an unfair competitive advantage may compromise the integrity of the procurement process, thus justifying a contracting officer’s decision to err, if at all, on the side of avoiding the appearance of a tainted competition. HBI-GF, JV, B‑415036, Nov. 13, 2017, 2017 CPD ¶ 331 at 4.
Here, the contracting officer found that WSP’s performance of the Corps’s ACI contract has the potential to provide WSP with access to information that would provide an unfair competitive advantage when competing for delivery orders under DLA’s generator contract. More specifically, the contracting officer explained that “the [Corps’s] ACI contractor may obtain prior knowledge of the potential generator lease requirement in the performance of its ACI contract that would lead to a competitive advantage during a delivery order competition under the DLA Generator contract.”[2] AR, Tab 11, OCI Determination at 2.
As discussed above, the eventual contractor for the instant procurement will provide for the rapid deployment of leased or rented generator sets to support FEMA’s disaster relief operations. RFP at 23. As the contracting officer stated in her initial OCI notice, under the ACI contracts, WSP provides “all labor, transportation, equipment, materials supervision, and required internal logistics support to perform generator set activities” during FEMA’s disaster relief efforts. AR, Tab 9, OCI Notice to WSP at 2; see AR, Tab 7, Corps ACI Contract at 2. During a “Pre-Disaster Declarations” mission, the ACI contractor would be mobilized into an area to prepare for a forecasted disaster, “prepping, loading, and hauling” at the location where DLA’s emergency generators would be delivered. AR, Tab 9, OCI Notice to WSP at 2; see AR, Tab 7, Corps ACI Contract at 2. Based on this information, the contracting officer concluded that the ACI contractor’s role as “an integral part of the disaster response by the [Corps] and FEMA”‑‑a disaster response that gives rise to delivery order requirements under the DLA’s generator contract‑‑creates at least an appearance of an OCI based on an unequal access to information. AR, Tab 11, OCI Determination at 3.
The protester argues that WSP’s performance of these duties under the ACI contract does not provide the firm with access to any competitively useful nonpublic information. Protest at 14‑19. Specifically, the protester asserts that none of the information WSP may obtain in the course of its performance under the ACI contract is proprietary or competitively useful in competing for delivery orders under the DLA generator contract. Id. In this regard, the protester contends that the information it receives from FEMA during a disaster relief operation in its capacity as the ACI contractor is either “already available to the public (including DLA contractors) or concerns the logistics for potential installation and maintenance support.” Id. at 15.
The agency responds that as the Corps’s ACI contractor, WSP would be directly involved in early discussions between FEMA and the Corps, which would eventually determine and define the generator needs for that mission, long before the DLA or its contractors are notified of the requirement. COS/MOL at 15. In this respect, the agency provided a declaration from the Corps’s national temporary emergency power program manager, who explains as follows:
Conversations start early in the mission between FEMA and [the Corps] about the generator requirements and capabilities. The ACI contractor has mission awareness during missions because they are receiving the taskings, conduct the [pre-installation inspections], and have the FEMA generators in their possession, and [have] visibility into the decision making about generator needs, and in some instances may help to develop the requirement, based in part on the [pre-installation inspections].
AR, Tab 8, Corps Decl. at 1. In addition, the agency contends that, under the ACI contract, FEMA provides WSP with “a complete list of FEMA[’s] generator inventory,” and WSP is responsible for providing a report on this inventory daily. COS/MOL at 15; see AR, Tab 7, Corps ACI Contract at 27. The program manager further explains that the inventory list “provides full visibility over the type of generators FEMA has available, where they are located, and their status/operability.” AR, Tab 8, Corps Decl. at 1‑2.
The agency also notes that, because of the unique time constraint involved in FEMA’s disaster relief operations, DLA contract holders have a very small window in which to respond to a request for delivery order quotations. Agency’s Supp. Brief at 1‑3. Under these circumstances, the agency argues, advance knowledge of FEMA’s generator needs and insight into FEMA’s current generator inventory would constitute nonpublic, competitively useful information. The contracting officer elaborates as follows:
When an emergency declaration is made, DLA generator[] vendors will not and should not know in advance whether FEMA has sufficient quantity and size of generators in its fleet to cover the mission. Once FEMA decides it needs to supplement its generator fleet, it sends a Request for Information [] to DLA with the quantity of generators it needs as well as the size requirements. This defines DLA’s requirements for its Request for Quotations (“RFQ”) under the Generator Sets contract. DLA contract holders will learn of the size/quantity need from the RFQ.
AR, Tab 13, Contracting Officer’s Supp. Decl. at 1.
Here, we note that the RFP advised offerors that contract holders would be given “at a minimum four (4) hours to respond” to a delivery order solicitation and would be required to deliver the generator to the specified destination within 24 to 48 hours. RFP at 25‑26. The agency explains that “during a disaster, speed and accurate communications are extremely important” and that DLA has “little to no visibility on the ground,” so that the agency “relies on FEMA and [the Corps] to define requirements for DLA contracts,” and the Corps, in turn, “relies on the ACI contractor to relay information to help define these requirements.” Agency’s Supp. Brief at 5; see AR, Tab 13, Contracting Officer’s Supp. Decl. at 2. Under these circumstances, the agency expressed concern with the potential for a competitive advantage arising from WSP’s early access to information about FEMA’s generator fleet inventory and “on the ground” insight on generator needs during a disaster in advance of those needs being communicated to DLA and to DLA’s generator contractors. Id. Specifically, given the extremely short response time in the DLA delivery order competition and the “extremely limited supply of leasable generators in the United States,” the agency reasoned that WSP could potentially have the competitive advantage of additional time to prepare and provide a responsive quotation compared to its competitors. Id. at 3.
Based on our review of the record, we find that the contracting officer reasonably concluded that WSP’s performance of its ACI contracts has the potential to provide WSP with access to nonpublic information about the government’s requirements that would provide WSP with an unfair competitive advantage when competing for delivery orders under DLA’s generator contract. In this regard, the contracting officer reasonably determined that WSP’s role as the ACI contractor gave rise to an inherent competitive advantage under the particular circumstances here where the vendors competing for a DLA delivery order must respond to the solicitation within a very tight timeframe.
While the protester disputes certain factual details alleged in the agency’s response to the protest, it does not demonstrate that the contracting officer acted unreasonably when making her discretionary determination. For example, although the protester disputes the agency’s argument that “the ACI contractor is involved in calls between FEMA, [the Corps], and the requesting jurisdictions,” Agency’s Supp. Brief at 1‑2, it does not refute that the ACI contractor has “visibility into the decision making about generator needs, and in some instances may help to develop the requirement, based in part on the [pre-installation inspections].” See Resp. to Supp. Brief at 2‑3, quoting AR, Tab 8, Corps Decl. at 1. Moreover, while asserting that WSP does not have access to “real-time” information about FEMA’s generator fleet, the protester does not dispute that the ACI contractor “has the full FEMA Generator Inventory list,” providing “full visibility over the type of generators FEMA has available, where they are located, and their status/operability.” See id. at 3, quoting AR, Tab 8, Corps Decl. at 1‑2.
Although the protester contends that the information it obtains as the ACI contractor is neither proprietary nor competitively useful because the information is eventually shared with the public and the DLA contract holders, we find reasonable the contracting officer’s conclusion that the timing of WSP’s access to this information confers an unfair advantage under the time‑sensitive conditions of a DLA delivery order competition. Therefore, we conclude that the contracting officer gave meaningful consideration to whether a significant conflict of interest exists, and we will not substitute our judgment for the agency’s reasonably based determination. In this regard, a contracting officer may disqualify a firm from the competition where the firm may have obtained an unfair competitive advantage, even if no actual impropriety can be shown, so long as the determination is based on hard facts, and not mere innuendo or suspicion. See Noonan & Assocs., supra. For this reason, we find no basis to sustain this allegation.
Impaired Objectivity
The protester also challenges the agency’s finding that WSP’s role as the ACI contractor creates an impaired objectivity OCI. An impaired objectivity OCI arises when a contractor cannot perform its obligations in an objective and unbiased manner because of countervailing economic or business interests. FAR 9.505(a), 9.505‑3; see Steel Point Sols., LLC, B-419709, B-419709.2, July 7, 2021, 2021 CPD ¶ 254 at 3. Our prior decisions have explained that an impaired objectivity OCI exists when a contractor is in a position to evaluate itself or its affiliates, or where the supposedly impartial judgments the contractor makes may otherwise directly influence its own self-interest. Guidehouse LLP, B‑419848.3 et al., June 6, 2022, 2022 CPD ¶ 197 at 10; see, e.g., The Analysis Grp., LLC, B-401726, B-401726.2, Nov. 13, 2009, 2009 CPD ¶ 237 at 4 (finding an impaired objectivity OCI is created when a contractor’s judgment and objectivity in performing contract requirements may be impaired due to the fact that the substance of the contractor’s performance has the potential to affect other interests of the contractor). The concern in such impaired objectivity situations is that a firm’s ability to render impartial advice to the government will be compromised by its relationship to the product or service being evaluated. See e.g., AT&T Corp., B‑417107.4, July 2, 2020, 2020 CPD ¶ 283 at 12 (sustaining protest because awardee would be required under a separate contract to evaluate the quality of services it would provide under the protested task order).
As noted above, the contracting officer concluded that WSP’s role under the ACI contract gave rise to an OCI or the appearance of an OCI based on impaired objectivity. In this regard, the contracting officer considered that the ACI contractor would be servicing the generators delivered under the DLA generator contract, including “hauling to install locations, installing, fueling, performing preventative maintenance and routine servicing, relocating and de-installing generators.” AR, Tab 11, OCI Determination at 2; see AR, Tab 7, Corps ACI Contract at 16. The contracting officer noted that this would require WSP, as the ACI contractor, to perform “installation, operation, and maintenance activities on both competitor[-]supplied generators . . . as well as on its own supplied generators.” Id. at 4. Under these circumstances, the contracting officer reasoned, “a reasonable person would question impartiality or bias in performing the work.” Id.
The protester disagrees with the contracting officer’s findings, arguing that its responsibilities under the ACI contract do not include the provision of advisory or evaluative services, or any other service that requires subjective judgment or evaluation. Protest at 20‑23; Comments at 9‑12. Specifically, the protester contends that while the ACI contractor is responsible for installing, operating, and maintaining FEMA generators during a disaster response, these responsibilities do not include advising FEMA about potential sources for its generator supply or evaluating the acceptability of generators supplied under the DLA contract. Id. WSP also argues that the ACI contractor’s servicing of DLA-provided generators could not impact DLA’s performance assessment of either WSP or its competitors because FEMA makes the ultimate determination of a non-mission capable (NMC) generator, which is the only finding that can affect the contractor performance assessment reporting systems rating assigned. Resp. to Supp. Brief at 16‑19. In this regard, the protester asserts that the generator monitoring and reporting activities performed by the ACI contractor involve routine, standard operations without any subjective judgments or evaluations, and thus do not give rise to an impaired objectivity OCI. Id. at 20‑24.
In response to the protest, the agency explains that the ACI contractor has “the primary responsibility for initial inspection, reporting, and/or repair of mechanical problems or difficulties with a generator, as it is conducting the daily maintenance” and that this would “require[] the ACI contractor to directly assess the conditions of the generators” supplied by WPS and its competitors under the DLA generator contract. Agency’s Supp. Brief at 4, quoting AR, Tab 8, Corps Decl. at 2. While the agency agrees that FEMA makes the ultimate determination as to whether a generator is NMC, it also asserts that the ACI contractor’s “recommendations . . . inform[] further actions by [the Corps], FEMA, and DLA to repair or replace any defective units.” AR, Tab 8, Corps Decl. at 2.
In this regard, the agency notes that the ACI contract requires WSP to deliver a “mission execution and monitoring system,” which provides the Corps and FEMA with “real time mission status data” on the generators, including data on assessments, pre‑installation inspections, maintenance, and repairs. COS/MOL 5‑6; see AR, Tab 7, Corps ACI Contract at 16‑17. Because the ACI contractor has the primary responsibility for the data entered into this system, the agency contends that a biased contractor would have the opportunity and incentive to enter selective data in favor of the generators it provides and to the detriment of the generators provided by its competitors. Id. The agency also argues that a significant appearance of impaired objectivity would arise from WSP’s responsibility to report issues with its own generators as well as its competitors’ and, in the event of a generator breakdown, to work with the competitors’ field service representatives or its own field service representatives. Agency’s Supp. Brief at 4; AR, Tab 13, Contracting Officer’s Supp. Decl. at 1.
On this record, we find that the agency reasonably concluded that WSP had a potential impaired objectivity OCI as a result of its role as the prime contractor under the Corps’s ACI contract. First, while WSP argues that it would not evaluate its own work in hauling and installing the generators, an impaired objectivity OCI is not limited to situations in which a contractor is evaluating its own or a competitor’s work. Rather, an impaired objectivity OCI is concerned with whether the contractor’s performance on one contract can affect other interests of the contractor. FAR 9.505 (describing an underlying principle on conflicts as “[p]reventing the existence of conflicting roles that might bias a contractor’s judgment”); see also, Leidos, Inc., supra at 9. Here, the agency notes its concern that WSP’s work under the ACI contract will provide WSP with the opportunity and the financial incentive to skew its assessment of the generators it provides and of the generators provided by its competitors. Although the protester decries any speculation of bad faith on its part and argues that the ACI contract has sufficient safeguards against biased performance, we find reasonable the contracting officer’s concern that WSP’s conflicting roles as the ACI contractor and a competitor for delivery orders under the DLA generator contract would call into question potential biases in WSP’s performance of the ACI contract. See Cognosante, LLC, B‑405868, Jan. 5, 2012, 2012 CPD ¶ 87 at 5 (finding that an agency reasonably disqualified an offeror from a competition based on an OCI that arose because the contractor would have conflicting financial incentives under two different contracts).
Although the protester expresses a different view of its responsibilities under the ACI contract and disagrees with the agency’s conclusions as to the conflict between that role and the role of a competitor for task orders under DLA’s generator contract, it has not demonstrated that the agency’s finding of a potential impaired objectivity OCI was unreasonable. See id. at 5‑6. Therefore, taking into account the considerable discretion afforded contracting officers, we find no basis to question the contracting officer’s determination that an impaired objectivity OCI, or at least the appearance of one, arises from WSP’s work as the ACI contractor. Lucent Techs. World Servs. Inc., B-295462, Mar. 2, 2005, 2005 CPD ¶ 55 at 5-6.
The protest is denied.
Edda Emmanuelli Perez
General Counsel
[1] At the time of the proposal submission, December 7, 2023, WSP was the incumbent contractor for the four ACI contracts that were due to expire on December 31, 2023, and an offeror in the ongoing competitive source selection for the follow-on contracts. AR, Tab 6, WSP Proposal at 149‑150. On December 7, 2023, the Corps awarded all four follow-on contracts to WSP. See AR, Tab 7, Corps ACI Contract at 1.
[2] The contracting officer also noted its concern that, while WSP “will not have access to proprietary information of competitors,” it will have “access to information regarding which vendors were successful” in the DLA delivery order competition, “including number of generators, sizes, and types.” AR, Tab 11, OCI Determination at 3. The protester argued that such information will be known by the DLA generator contractors competing for the task order through the task order solicitation and award notification process. Protest at 16‑18; Comments at 6. The agency did not substantively respond to the protester’s arguments in this regard and thus effectively conceded this issue. See generally, COS/MOL; Agency’s Supp. Brief. However, given our conclusion below that the agency reasonably identified disqualifying OCIs with respect to WSP’s access to other competitively useful information as the Corps’s ACI contractor, we find that the protester suffered no competitive prejudice as a result of the agency’s unsupported concern about WSP’s potential access to competitors’ information. A-Tek, Inc., B‑404581.3, Aug. 22, 2011, 2011 CPD ¶ 188 at 10 (“Prejudice is an essential element of every viable protest, and we will not sustain a protest where it is clear from the record that a protester suffered no prejudice as a result of an agency evaluation error.”).