Firewalled Subcontractors Can Adequately Mitigate Impaired Objectivity OCIs Federal agencies cannot award a contract to an offeror with an impaired

Firewalled Subcontractors Can Adequately Mitigate Impaired Objectivity OCIs Federal agencies cannot award a contract to an offeror with an impaired

objectivity organizational conflict of interest (OCI) unless proper

safeguards are implemented. An impaired objectivity OCI may arise when a contractor is tasked with evaluating its own offers for products or services, or those of a competitor. The primary concern under this type of OCI is that a firm might not be able to render impartial advice due to its relationship with the entity being evaluated.

In a recent bid protest, the U.S. Court of Federal Claims addressed the adequacy of an impaired objectivity OCI mitigation plan proposed by the awardee of a contract with the U.S. Census Bureau. The contract was for application testing services, program and project management, consulting services, and other support services.

In its quote, the awardee identified a minor risk of OCI, noting that it had developed a testing tool that it has licensed to the Census for the purpose of conducting performance and scalability testing on the Census' systems and software. The quote explained that "consequently, it [was] possible [the awardee] will be tasked with evaluating [its own testing tool] and/or other performance test tools as part of the 'consulting services' required under [the solicitation]." To address the potential OCI, the awardee proposed a mitigation plan.

Under the plan, the awardee would assign all work relating to the evaluation of test tools to subcontractors. Furthermore, the awardee would impose a strict firewall between its personnel and its subcontractors when performing work related to the evaluation of test tools.

The awardee's general counsel would be responsible for monitoring the firewall and would also “meet regularly with [the awardee's] managers responsible for [performance of the contract] to ensure that all OCIs or potential OCIs are timely identified and mitigated.” Finally, the awardee would remove its testing tools and any of its products from contention for evaluation if a task order was issued requesting evaluation of products that could encompass those tools.

Another offeror eventually filed a protest alleging, among other issues, that the awardee's proposed OCI mitigation plan was inadequate. The court disagreed. It noted that the GAO, as well as other judges of the COFC, have determined that the use of firewalled subcontractors, similar to what was contemplated under the awardee's plan, can adequately mitigate impaired objectivity OCIs.

The court also rejected the protester's other arguments and upheld the award. #procurement #governmentcontracts #OCI