Thursday, January 3, 2013
Protestors Must Allege “Hard Facts” when Alleging an OCI
A recent GAO decision highlights the requirement that protesters identify “hard facts” when alleging the existence of organizational conflicts of interest.
The case of North Wind, Inc., B-404880, B-404880.7, November 5, 2012, 2012 CPD ¶ 314, returned to GAO after it had previously sustained a protest. While determining what corrective action to take, NASA established a bridge contract that allowed North Wind’s competitor and putative awardee, Navarro, to hire away its personnel.
Unequal Access to Information Allegation and Government Inquiry
North Wind argued to NASA that Navarro obtained access under the bridge contract to such sensitive and proprietary company data as bid rates, staffing approach, work plans, schedules, labor mix, and labor estimates. Due to North Wind’s OCI allegations, NASA conducted an inquiry. The inquiry officer interviewed NASA government officials involved in the procurement to determine how North Wind’s data was handled and stored. In addition, the officer sent Navarro a request for information. Navarro responded that it had not allowed any of its new hires to participate on the re-compete effort and that none of these personnel had received any of North Wind’s proposal information. Navarro then also submitted to NASA affidavits from North Wind’s former employees working on the bridge contract that stated they had not provided any of protester’s proprietary information to Navarro. It is not clear that NASA shared its detailed findings with the protester prior to the protest filing.
Post-Award Protest Unsuccessful
After NASA affirmed its prior award, North Wind protested to GAO, arguing that NASA’s OCI inquiry was insufficient. GAO denied the protest, pointing out that even though Navarro performed the bridge contract using former North Wind employees, this alone did not constitute “hard facts” necessary to sustain a protest. GAO also found that NASA conducted an independent review without relying entirely on Navarro’s representations.
Practical Pointers for Protesters Alleging Improper OCI Inquiries in the Face of a Thorough Investigation:
- First, GAO makes clear in its decision that it will look for new facts from a protestor when it finds that the agency has conducted a thorough investigation of the alleged conflict. Under facts like these, a protester should look to show that the other party in fact received proprietary information.
- Second, it is important to recognize that protesters may be facing an uphill battle in determining the extent of the government’s inquiry without filing an additional protest. In this instance, it appears that NASA stated that its conclusion that an OCI was not present, declining to share both the extent of its investigation and its redacted findings with offerors. While procuring agencies may be justifiably leery of providing such information after multiple rounds of protests, such information sharing could inure to the benefit of all parties.