Link: GAO Opinion
Agency: Department of the Air Force
Disposition: Protest denied.
Keywords: Organizational Conflict of Interest; OCI
General Counsel P.C. Highlight: Where an individual obtains non-public, competitively useful information in connection with a private employment or consulting agreement, an allegation that the information subsequently was shared with a competitor is a dispute between two private parties, and does not give rise to an OCI.
Ellwood National Forge Company (Ellwood) protests the decision by the Department of the Air Force to allow McConway and Torley, LLC (M&T) to compete for a contract to manufacture bomb live unit-113 (BLU-113) case assemblies and pallets under a request for proposals (RFP). Ellwood asserts that M&T has an impermissible organizational conflict of interest (OCI).
The protest centers on an individual who was a long-term employee of, and later a consultant to, Ellwood. The individual served as a consultant to Ellwood through his firm Cherokee Technical Specialists, LLC (CTS). The individual was closely involved in the development and production of BLU-113 warhead casings, and in the fabrication and formulation of HP 9-4-20M steel by Ellwood. Ellwood states that it has been a subcontractor on the massive ordnance penetrator (MOP) program. CTS was employed as a subcontractor by the company performing system engineering and technical assistance in connection with the MOP program.
CTS also entered into a consulting relationship with M&T to assist that firm in qualifying to manufacture the BLU-113 casings. When Ellwood learned of the consulting relationship between CTS and M&T, it wrote to the contracting officer, advising her of its concern that the relationship between the two created a potential unfair access to information OCI on the part of M&T.
The contracting officer investigated Ellwood’s concerns and reviewed non-disclosure and professional services agreements between Ellwood and the individual and the individual and M&T. The contracting officer also requested affidavits from all parties in question and contacted the cognizant Air Force engineering team for the BLU-113 requirement to determine whether the team could discern any similarities between the M&T-produced steel and the Ellwood-produced steel that could have resulted from Ellwood’s information being provided to M&T. The engineers stated that there were significant differences between the two firms’ manufacturing processes; such that there was no basis to conclude that the individual had provided M&T any information regarding Ellwood. The contracting officer concluded that no OCI existed and M&T could compete.
GAO states that Ellwood’s assertions are without merit. Ellwood’s allegations amount to no more than an assertion that information the individual acquired as an Ellwood employee and consultant was improperly shared with M&T. This is not an OCI scenario; rather, it amounts to an alleged violation of an agreement between private parties that GAO will not consider. Where an individual obtains non-public, competitively useful information in connection with a private employment or consulting agreement, an allegation that the information subsequently was shared with a competitor is a dispute between the parties, and does not give rise to an OCI. The contracting officer conducted an extensive investigation and the effort was sufficient to provide the agency with the information necessary to reach a reasonable judgment as to the potential OCI. The protest is denied.