Link: GAO Opinion
Agency: Department of Health and Human Services
Disposition: Protests denied.
Keywords: Corrective Action; OCI
General Counsel P.C. Highlight: Where an agency conducts exchanges with an offeror regarding the offeror’s plan to mitigate identified conflicts of interest, such exchanges do not constitute discussions.
C2C Solutions, Inc. (C2C) protests the corrective action being taken by the Department of Health and Human Services, Centers for Medicare and Medicaid Services (CMS), in response to GAO recommendation for corrective action in sustaining a previous protest.
GAO originally sustained C2C’s protest against an award of a contract, under a request for proposals (RFP), issued by CMS for contracts in support of its audit, oversight, and anti-fraud, waste, and abuse efforts in two geographic zones. GAO found that CMS failed to reasonably consider the plan submitted on behalf of the awardee, by its parent company, to mitigate the awardee’s organizational conflicts of interest (OCI). GAO recommended that “the agency reconsider its determination that the awardee is eligible for award based on the amended OCI mitigation plan.” CMS advised GAO that it planned to implement the recommendation by “re-engaging” the awardee regarding its proposed OCI mitigation strategy.
C2C and TrustSolutions argue that CMS’s decision to reengage the awardee regarding the proposed mitigation plan is improper where it is inconsistent the GAO recommendation and is contrary to FAR § 9.504(e). GAO states that the details of implementing their recommendations for corrective action are within the discretion and judgment of the contracting agency. The issue in this protest is whether the corrective action proposed by CMS is contrary to FAR § 9.504(e) or whether their “re-engagement” constitutes improper discussions.
Under FAR § 9.504(e), when an agency concludes that an apparently successful offeror is ineligible for award based on a conflict of interest, the agency is required to notify the firm and allow it “a reasonable opportunity to respond.” GAO states that CMS is not precluded from reengaging the awardee regarding its OCI mitigation plan. FAR § 9.504(e) merely establishes an agency’s minimum duty to provide an offeror with an opportunity to respond to an agency’s OCI concerns where, but for the OCI concerns. the offeror would receive an award. There is also nothing in FAR § 9.504(e) to suggest that the offeror’s status has any bearing on how the agency should engage the offeror regarding its OCI mitigation strategy. Where an agency conducts exchanges with an offeror regarding the offeror’s plan to mitigate identified conflicts of interest, such exchanges do not constitute discussions. The protests are denied.