Link: GAO Opinion
Agency: Department of the Navy
Disposition: Protest denied.
Keywords: OCI; conflict of Interest
General Counsel P.C. Highlight: The FAR requires contracting officials to avoid, neutralize or mitigate potential significant OCIs so as to prevent an unfair competitive advantage or the existence of conflicting roles that might impair a contractor’s objectivity.
ITT Corporation (ITT) protests the award of a contract under a request for proposals (RFP) issued by the Department of the Navy, Space and Naval Warfare Systems Center Pacific, for joint tactical radio system (JTRS) software.
The RFP contemplated the award of a cost-plus-fixed-fee/cost-plus-incentive-fee contract for a two-year base period, with three option years. Award was to be made to the offeror submitting the proposal deemed to offer the “best value” to the government considering both cost and several non-cost factors. After receiving three proposals, the agency determined that discussions were necessary. Following the award of the contract to another offeror, ITT filed this protest asserting that the awardee had an impermissible “unequal access to information”-type organizational conflict of interest (OCI).
The FAR requires contracting officials to avoid, neutralize or mitigate potential significant OCIs so as to prevent an unfair competitive advantage or the existence of conflicting roles that might impair a contractor’s objectivity. An unequal access to information OCI exists where a firm has access to nonpublic information as part of its performance of a government contract and where that information may provide the firm a competitive advantage in a later competition.
ITT complained that it was required under another contract to share certain information with Boeing that eventually improved its proposal and made it first in line for award. GAO held that Where, as here, the protester has the information in question and the awardee also has the same information, the awardee cannot be said to have “unequal access to information.” ITT cannot be prejudiced since both ITT and the awardee had access to the same information. Additionally, ITT was contractually required to provide the information to the other offerors by virtue of a government purpose rights license. GAO concludes that there was no “unequal access” OCI.
ITT also asserts that the agency misevaluated its technical proposal and takes issue with almost every weakness identified by the agency. GAO states that it will not address ITT’s assertions relating to the evaluation in detail since, even if ITT was correct with respect to its assertions, the errors would not have affected its standing in the competition. The protest is denied.