Washington Business Journal by Lee Dougherty, Attorney, General Counsel PC
Date: Friday, December 16, 2011, 1:05pm EST
I don’t find myself saying this very often, but the Government Accountability Office got this dead wrong. And worse than getting it wrong, the watchdog agency admits that it in essence took the easy way out, rather than standing firm on what constitutes an appearance of impropriety.
Protesting contractor: VSE Corp., Alexandria, VA
Contracting agency: Department of the Army
Protest issue: Whether or not there was the appearance of impropriety in hiring a former government employee.
Post-mortem: This decision stemmed from the Army’s determination that VSE Corp. broke the rules when it hired a former government employee to work as a consultant on a contract, which he had previously supported while working for the agency. As a result, the contracting officer terminated an award to VSE, and VSE protested that termination. In its decision the GAO held that although some of the arguments presented by the contracting officer were in fact true, the decision that a conflict of interest existed was based on assumption and not hard fact.
There are two types of conflicts: those conflicts that are a violation of the law, and those where there is an appearance of impropriety. In either case, the conflict exists and the contractor can’t compete.
In this case, the GAO was critical of the contracting officer for assuming there was a conflict, based upon the fact that the former employee helped create the statement of work, participated in meetings with the source selection officials, and had access to related data as recently as a few days before being hired by the contractor. But in fact, the contracting officer was doing his or her job. The evidence threw up red flags, which — by definition — created an appearance of impropriety.
Perhaps the most telling sentence in the GAO decision came as part of a footnote, which stated that the decision was not intended to “reflect our judgment” that former employee’s actions “do not raise any legitimate concerns that his hiring by VSE as a consultant creates an appearance of impropriety.”
That sentence alone is acknowledgement that GAO got it wrong.