Link: GAO Decision
Protestor: General Dynamics C4 Systems, Inc.
Agency: Department of the Navy, Space and Naval Warfare Systems Command
Disposition: Protest Denied.
- Contracting officer’s determination that there was no organizational conflict of interest that would preclude an award to the awardee was reasonable where the contracting officer reasonably investigated to see if an award would present an organizational conflict of interest and reasonably determined that it would not.
- Agency conducted meaningful discussions with the protester and was not required to advise the protester during discussions of proposal weaknesses that were reasonably considered by the agency not to be significant.
General Counsel PC Highlight:
General Dynamics C4 Systems, Inc. protested the award to Serco, Inc. of a contract for the production of automated digital network system (ADNS) Increment (INC) III, to be used ashore and on certain Navy ships. Award was to be made on a best value basis, with cost/price being less important than the combined weight of the following non-cost/price evaluation factors: technical approach; corporate experience; past performance; small business utilization and commitment; and brand name or equal. The solicitation included technical data packages (TDPs) providing step-by-step instructions for the production of the ADNS INC III, and giving all the information that the contractor needed to make or buy the components that are assembled into the end item. Although its price was approximately $3 million higher, award was made to Serco as representing the best value to the government.
General Dynamics first argued that Serco had an impermissible OCI through its employment of a former SAIC employee who allegedly had been exposed to information proprietary to General Dynamics during his previous employment, which provided Serco with an unfair competitive advantage. The GAO, however, found no basis to object to the adequacy of the agency’s inquiry into whether Serco had an OCI, or the reasonableness of its conclusion that no unequal access to information OCI existed. The CO had requested detailed information about the former SAIC/current Serco employee’s role at the agency accompanied by a timeline of his support efforts, as well as a description of his ADNS-related work. The CO also met with numerous persons with direct knowledge of the former SAIC/current Serco employee to determine his exposure to General Dynamics’ proprietary information. The CO concluded that any information to which the employee had been exposed was either subsequently released to all offerors in the TDPs, or was too remote in both substance and time from the actual full rate production requirements to be of competitive advantage.
General Dynamics also argued that the agency had failed to conduct meaningful discussions or that the discussions were misleading. The GAO, however, found reasonable the agency’s judgment that none of the weaknesses assigned to General Dynamics’ proposal could be characterized as significant, such that they should have been brought to General Dynamics’ attention during discussions. The agency had chosen not to raise the weaknesses because they were not directly related to the RFP or SOW, and the agency believed that the relative merits of General Dynamics’ proposal would not have changed had it been allowed to address the weaknesses.
Offerors are generally not required to raise the issue of potential OCIs until after the alleged conflicted company has been awarded the contract. However, if an offeror is aware of the facts giving rise to an apparent OCI, and the agency has informed offerors that it considers that company eligible to compete, the prospective offeror must protest that company’s eligibility to compete prior to the time set for receipt of proposals. The protestor must then provide hard facts that indicate the existence or potential existence of a conflict; the responsibility then shifts to the agency to determine whether the conflict exists.