A Steady Drumbeat?

In every Organizational Conflict of Interest (OCI) bid protest decision, the Government Accountability Office (GAO) says that it will defer to the Contracting Officer (CO) – i.e., that it “will review the reasonableness of a contracting officer’s OCI investigation and, where an agency has given meaningful consideration to whether a significant conflict of interest exists, . . . will not substitute our judgment for the agency’s, absent clear evidence that the agency’s conclusion is unreasonable.”

In past years, however, several GAO decisions raised doubt as to whether GAO was merely paying lip service to the deference standard.  In each of these cases, involving all three types of OCI’s, GAO reversed a CO’s determination made after what seemed to be a serious and reasonable investigation and analysis.  See, for example, B.L. Harbert-Brasfield & Gorrie, JV and McCarthy/Hunt, JV, (protests sustained based on unequal access to information and biased ground rules OCI’s);[1] L-3 Services, Inc., (protest sustained based on biased ground rules and unequal access to information OCI’s);[2] and Nortel Government Solutions, [3](protest sustained based on impaired objectivity OCI).

Since those decisions, however, the Court of Appeals for the Federal Circuit has reiterated the deference standard in its review of GAO and Court of Federal Claims protest decisions.  Indeed, at the February 2012 “Year in Review” conference Ralph White, Managing Associate General Counsel at GAO, described this as a “steady drumbeat” emphasizing that a contracting officer’s decision should be shown deference, absent “hard facts” that indicate the existence or potential existence of a conflict.

Three GAO decisions in the past few months suggest that GAO has gotten the message.  These cases involve different types of OCI’s and different theories, but their common thread is that in each case GAO found that the contracting officer had performed a reasonable analysis and deferred to the CO’s decision.

The first decision, Oklahoma State University, B-406865, September 12, 2012, involved an Air Force procurement for the production of publications.   The CO investigated and analyzed several OCI challenges that were first raised in the protest, but concluded that non-governmental personnel had not influenced the drafting of the solicitation or had access to source selection information, citing extensive information security precautions taken by the agency.  GAO concluded that CO’s investigation was thorough and its conclusions reasonable, and that the protestor had failed to identify any “hard facts” to indicate the existence or potential existence of a conflict.

A decision issued two weeks later, Science Applications International Corporation, B-406899, September 26, 2012, involved a protest against a contract award by the Department of Commerce (NOAA) for technical support services, including engineering and design reviews and recommendations of new technology.  Concerned about all three types of OCI’s, the solicitation required offerors to identify any products they produced that might be incorporated into the recommended systems, and describe mitigation efforts.

The awardee’s proposal stated that neither it nor its subcontractors offered any relevant products, and proposed a detailed monitoring and screening process (headed by the awardee’s vice president) to identify and mitigate any potential OCI that might arise.  The CO searched awardee’s and subs’ website and confirmed this information.  The CO also searched FAPIIS and determined that the awardee had no negative integrity reports on other contracts.

SAIC protested, arguing that agency failed to consider the awardee vice president’s relationship to another company offering relevant products, as well as products made by one subcontractor.  After these issues were raised in the protest, the agency conducted an investigation and analysis and determined that those potential OCI’s were sufficiently mitigated because (a) the subcontractor would be performing maintenance but not recommending products, and (b) if a potential OCI’s arose relating to the vice president, he could be recused from the review process.  GAO found that SAIC had not shown that the agency’s judgment was unreasonable, and denied the protest.

[Note: In its proposal SAIC had provided a mitigation plan to address potential conflicts involving products that it produced.  The agency downgraded (but did not reject) SAIC’s plan as high risk and impractical to administer.  SAIC argued disparate treatment, but did not pursue that avenue in the protest.]

Less than a week later, SAIC lost another challenge to a contracting officer’s OCI determination.  In Science Applications International Corporation, B-406921.2, October 1, 2012, SAIC challenged a DISA award of an IDIQ task order contract for operation, maintenance, and net assurance of the Defense Information Systems Network (DISN).  SAIC contended that the awardee had an unequal access OCI related to its hiring of the former chief of DISA’s customer support division to be site manager on the contract.  The Contracting Officer conducted a full investigation, reviewed the employee’s post-employment counseling questionnaire, made multiple information requests to the awardee, and required the awardee to submit an OCI mitigation plan that addressed the issue.  Finding that the former employee was a “contingent hire” for the awardee’s subcontractor and had not had access or input to the awardee’s (or subcontractor’s) proposal, the CO concluded that the awardee did not have an unequal access OCI.  GAO found “nothing unreasonable” about CO’s investigation or conclusions.

So – what is our conclusion from these cases?  Will GAO deny every OCI protest?  No – it will sustain a protest if it believes that the contracting officer has not done his or her job.  See, for example,  PCCP Constructors, JV, B-405036, August 4, 2011,  where the protester contended that the awardee had an unequal access to information OCI because it had hired a high-level government employee from the office responsible for the procurement. GAO found that the agency did not conduct a reasonable investigation because it limited its review to the role the government employee had in the procurement prior to his retirement and did not consider the employee’s access to non-public, source selection information.

But if the contracting officer does a reasonable investigation and analysis and reaches a reasonable conclusion, GAO appears to be taking seriously its promise not to second guess that decision.

Want to learn more about OCI cases and practice?  Take the OCI Workshop.

[1] B-402229, B-402229.2, February 16, 2010, 2010 CPD ¶¶ 68 and 69, rev’d, Turner Constr. Co., Inc. vs. United States, 94 Fed. Cl. 561 (Fed. Cl. 2010), aff’d, Turner Constr. Co., Inc. vs. United States, 645 F.3d 1377 (Fed. Cir. 2011);

[2] B-400134.11, September 3, 2009, 2009 CPD ¶ 171 (protest sustained based on biased ground rules and unequal access to information OCI’s)

[3] B-299522.5, B-299522.6, December 30, 2008, 2009 CPD ¶ 10

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