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  • Question

    Can you eliminate a potential contractor from the solicitation?


    Answer

    The DOD Source Selection Procedures says this about unauthorized disclosure of information:
    1.4.1.2.6. Ensure all involved in the source selection are briefed and knowledgeable of Subsection 27(a) of the Office of Federal Procurement Policy Act, contractor bid and proposal information, as well as source selection information. Ensure that all persons receiving source selection information are instructed to comply with applicable standards of conduct (including procedures to prevent the improper disclosure of information) and sign a Non-Disclosure Agreement and a conflict of interest statement. Ensure Conflict of Interest Statements (from both Government members/advisors and non-Government team advisors) are appropriately reviewed and actual or potential conflict of interest issues are resolved prior to granting access to any source selection information. (See CFR 2635).

    Additionally,
    FAR 15.306 states that government personnel may not engage in conduct that  (1 favors one contractor over another.... and (5 government may not knowingly furnish source selection information in violation of FAR part 3.104 and 41 USC 423(h)(1)(2). Consequently, if you suspect compromising information has been released to a potential offeror, and that the bidding process has been contaminated, you should document the facts concerning the matter and ask the contracting officer to make a decision to cancel the solicitation and resolicit.  Summarily dismissing a contractor from a solicitation offering does not seem to be the correct approach.  The correct approach would probably be to contact the contracting officer, decide if the information furnished violated policy, ask for a decision, consult with your attorney and then decide what action to take.  I am not aware of any rule that permits eliminating a prospective offeror summarily in the face of government impropriety. On the other hand, proceeding with the solicitation with the knowledge that some contractors have an advantage over others might precipitate a successful protest by losing contractors.


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