Contractor Wins Contract Despite “Cribbing” a Proprietary Staffing Plan from a Competitor

Your Recruiting Company, Inc. (“YRC”) and Golden Key Group, L.L.C. had once been in a joint venture together. As is common in such relationships, they agreed to share proprietary data, subject to a nondisclosure agreement. Subsequently, both companies bid on the same task order put out by the National Science Foundation (“NSF”). Golden Key won.

Disappointed, YRC filed a post-award bid protest arguing that content within Golden Key’s proposal was taken without permission from YRC and that this material was relied on by NSF in making the award to Golden Key. “YRC’s theory can be summed up in a statement from its motion for judgment on the administrative record: ‘by cribbing information from a proposal on which YRC[] and [Golden Key] had teamed, whether unknowingly or intentionally, [Golden Key] made a false statement.’

The Court of Federal Claims denied the bid protest because it found that the NSF didn’t really rely on the cribbed language when making the award. It wrote that “the contracting officer, fully aware as the source selection authority as to how the technical factors of the proposals were weighed, concluded that the allegedly cribbed language was simply not that important. The language related only to Golden Key’s internal hiring process, not to how it would directly engage in assisting NSF, and it was embedded in other, rather generic, self-assessing language in which Golden Key characterized its management approach. Collectively that portion of the proposal supported the ‘very good’ rating. Nothing in the administrative record or in defendant’s brief warrants our second guessing the contracting officer’s source selection determination.”

The Court also rejected the YRC argument that the cribbing made the award by NSF wrongful per se based on the False Statement Act, 18 U.S.C. § 1001 (2006). (The “false statement, according to YRC was the implicit representation by Golden Key that it drafted all the language included in its proposal). While the Court wrote that it was reluctant to hold that plagiarism could never be relevant in a contracting officer’s evaluation of the merits of a proposal, it was comfortable holding that the contracting officer’s treatment of the asserted plagiarism in this case was unassailable. The notion that Golden Key should have reported itself for a criminal false statement by virtue of its inclusion of the language in dispute here was completely without support.

In retrospect, in this case, YRC may have done better by suing on the nondisclosure agreement. Now, with the CFC ruling that the the cribbed language was “not important,” it will find it difficult to prove damages in such a lawsuit.

—————-

Dave Albo – Attorney are bid protest lawyers and government contract attorneys. We also prosecute and defend allegations of nondisclosure agreement breaches. To contact us, click here.