gotiations and report the facts under agency procedures.” In contrast, the FAR places no affirmative reporting requirement on a CO for a suspected or actual PIA violation. The courts have determined that COs lack authority to determine the existence of fraud. For example, in a 2001 U.S. Court of Appeals Deci- sion in UMC Elec. Co. v. United States , the court noted that “a contracting officer cannot find fraud but must refer sus- pected cases of fraud to the Depart- ment of Justice.” PIA Overview The PIA, 41 U.S.C. §§ 2101–2107, implemented at FAR 3.104, was a by- product of a procurement fraud scan- dal in the 1980s, known as Operation
Ill Wind in which the then DoD em- ployees received bribes for providing sensitive procurement information. Significantly, section 2102 prohibits knowingly disclosing and obtaining contractor bid, proposal information, and source selection information prior to award of a competitive federal agency procurement. Section 2101(2) defines contractor bid or proposal information as non- public information submitted to the agency as part of a bid or proposal, to include “cost or pricing data … in- direct costs and direct labor rates … [certain] proprietary information … [and ] “Information marked by the contractor as ‘contractor bid or pro- posal information’ in accordance with applicable law or regulation.”
Section 2101(7) defines source selection information as nonpublic information “prepared for use by a fed-eral agency to evaluate a bid or proposal to enter into a federal agency procurement contract ….” Source selection information includes bid prices, proposed costs or prices, source selection and technical evalu- ation plans, cost or price evaluations, competitive range determinations, rankings, source selection reports and evaluations, and information that the agency marks as source selection information. To constitute a PIA violation, the improperly disclosed information must fit within one of these two definitions. For example, in a 2020 CLC Construction Company Appeal to the
November-December 2025 | DEFENSE ACQUISITION | 45
Made with FlippingBook - Online Brochure Maker