Bid Protest Sustained Due to Inadequate Organizational Conflicts of Interest Analysis Federal contracting officers must identify and evaluate
Bid Protest Sustained Due to Inadequate Organizational Conflicts of Interest Analysis Federal contracting officers must identify and evaluate
potential organizational conflicts of interest, which, if present, must be avoided, neutralized, or mitigated to prevent an unfair competitive advantage or the existence of conflicting roles that might impair a
contractor’s objectivity. The situations in which OCls arise can be broadly categorized into three types: (1) biased ground rules; (2) unequal access to information; and
- impaired objectivity.
The GAO recently sustained a bid protest after finding that the agency
- failed to reasonably identify and evaluate the nature and extent of the awardee’s access to nonpublic competitively useful information, and
- did not conduct a reasonable impaired objectivity analysis.
The purpose of the procurement at issue was is to secure engineering support services for the Navy. However, the awardee had previously been awarded a task order for management support services, which included system engineering support services, project management, equipment support, among others.
With respect to unequal access to information, the protester argued that the awardee “had unparalleled access to [the Navy’s] internal risk analyses, technology needs and objectives, configuration data, program budgets, and schedule information.” According to the protester, this “allowed [the awardee] the unfair and unequal ability to propose Engineering Support in line with the Agency’s internal projections, unpublished concerns and unannounced objectives--information that was not shared with other offerors in the competition.” In the Navy’s OCI determination, the contracting officer did not deny that performance of the management support task order would provide access to the types (and nature) of information that the protester alleged.
Instead, the contracting officer explained that, because the management support task order was awarded just 14 days prior to the submission of proposals for the engineering support services task order, the awardee had not yet performed substantive tasks, and thus had no unequal access to competitively useful information.
The GAO concluded that the Navy’s OCI investigation was unreasonable because it did not consider whether the awardee’s employees had access to nonpublic competitively useful information during the 14 days after award of the first task order.
The protester also argued that, under the management support task order, the awardee would evaluate its own work under the engineering support task order. The GAO agreed with the protester, finding that the plain terms of the first task order required the awardee to advise the Navy on work related to the second task order. As a result, it concluded that the agency’s determination that there was no impaired objectivity OCI was unreasonable because it relied on an incomplete and unreasonably myopic review of the scope of work of the first task order.