I recently wrote a post suggesting that contractors should read GAO decisions to glean best practices and for training purposes. This blog illustrates the value in doing so. As you probably know and as discussed in other blogs herein, FAR subpart 9 addresses OCIs, includes many examples of them and discusses much more including how to mitigate them. Additionally, GAO has categorized OCIs in three broad categories. Following are excerpts from various GAO decisions that explain these three categories and also shed light on how they make decisions on OCI protests.
“Contracting officials must avoid, neutralize or mitigate potential significant OCIs so as to prevent an unfair competitive advantage or the existence of conflicting roles that might impair a contractor’s objectivity. FAR §§ 9.504(a), 9.505. The situations in which OCIs arise, as addressed in FAR subpart 9.5 and the decisions of our Office, fall under three broad categories: unequal access to information, biased ground rules, and impaired objectivity.”
“Contracting officers are required to identify and evaluate potential conflicts of interest as early in the acquisition process as possible. Federal Acquisition Regulation (FAR) § 9.504. The FAR provides that an OCI exists when, because of activities or relationships with other persons or organizations, a person or organization is unable or potentially unable to render impartial assistance or advice to the government. See FAR § 2.101. Situations that create potential conflicts are further discussed in FAR subpart 9.5 and the decisions of this Office.” (https://www.gao.gov/products/b-411620%2Cb-411620.2
“Specifically, an “impaired objectivity” OCI is created when a contractor’s judgment and objectivity may be impaired because the contractor’s performance has the potential to affect other interests of the contractor. FAR §§ 9.505, 9.508; Alion Science & Technology Corporation, B-297022.3, Jan. 9, 2006, 2006 CPD ¶ 2 at 6.”
“Broadly speaking, we have recognized that an “impaired objectivity” OCI may exist in two possible situations, namely, where a firm may be called upon to evaluate the work it has performed under another contract, or where a firm is called upon to perform analysis and make recommendations regarding products manufactured by it or by a competitor. L-3 Services, Inc., B‑400134.11, B‑400134.12, Sept. 3, 2009, 2009 CPD ¶ 171 at 13-14. The pertinent inquiry with respect to the latter concern is whether a firm is in a position to make judgments or recommendations that would have the effect of directly influencing its own well-being. Id. at 14; see also Alion Science & Technology Corporation, supra (protest sustained where awardee would be required to perform analysis and make recommendations regarding products that might be manufactured by it or by a competitor).”
“As relevant here, an unequal access to information OCI exists where a firm has access to nonpublic information as part of its performance of a government contract that may provide the firm a competitive advantage in a later competition. FAR §§ 9.505(b), 9.505-4; Maden Techs., B‑298543.2, Oct. 30, 2006, 2006 CPD ¶ 167 at 8. As the FAR makes clear, the concern regarding this category of OCI is that a firm may gain a competitive advantage based on its possession of “[p]roprietary information that was obtained from a Government official without proper authorization,” or “[s]ource selection information . . . that is relevant to the contract but is not available to all competitors, and such information would assist that contractor in obtaining the contract.” FAR § 9.505(b) (underline added).
“A biased ground rules OCI may arise where a firm, as part of its performance of a government contract, has in some sense set the ground rules for the competition for another government contract by, for example, writing or providing input into the specifications or statement of work. FAR §§ 9.505-1, 9.505-2. In these cases, the primary concern is that the firm could skew the competition, whether intentionally or not, in favor of itself. Operational Resource Consultants, Inc., B-299131, B-299131.2, Feb. 16, 2007, 2007 CPD ¶ 38 at 6.” (https://www.gao.gov/products/b-415126.2%2Cb-415126.3%2Cb-415126.4)
Finally, GAO has offered insight into how they make decisions in OCI cases.
“In reviewing bid protests that challenge an agency’s conflict of interest determinations, our Office reviews the reasonableness of the CO’s investigation and, where an agency has given meaningful consideration to whether an OCI exists, we will not substitute our judgment for the agency’s, absent clear evidence that the agency’s conclusion is unreasonable. See Enter. Info. Servs., Inc., supra, at 8; NetStar-1 Gov’t Consulting, Inc., B-404025.2, May 4, 2011, 2011 CPD ¶ 262 at 7.”
“A protester must identify hard facts that indicate the existence or potential existence of a conflict; mere inference or suspicion of an actual or potential conflict is not enough. TeleCommunication Sys., Inc., B‑404496.3, Oct. 26, 2011, 2011 CPD ¶ 229 at 3‑4; see Turner Constr. Co., Inc. v. U.S., 645 F.3d 1377, 1387 (Fed. Cir. 2011).”
“The identification of conflicts of interest are fact-specific inquiries that require the exercise of considerable discretion. NetStar-1 Gov’t Consulting, Inc., supra; see Axiom Res. Mgmt., Inc. v. U.S., 564 F.3d 1374, 1382 (Fed. Cir. 2009).”
The intent of this blog is not to offer advice on whether to file an OCI protest but rather to explain how to recognize them. If you have questions on OCIs or mitigation plans, feel free to reach out to Skyway.
