Link: GAO Decision
Protestor: North Wind, Inc.
Agency: National Aeronautics and Space Administration
Disposition: Protest Denied.
Protest that an offeror had an immitigable unequal access to information organizational conflict of interest that should have disqualified it from the competition is denied, where the agency reasonably concluded that the offeror’s performance of a bridge contract for the same services did not provide access to the protester’s non-public, proprietary information.
General Counsel PC Highlight:
North Wind, Inc. protested the terms of an amendment to an RFP for environmental compliance and restoration work at the White Sands test facility in Las Cruces, New Mexico. The amendment was issued in response to a decision by the GAO sustaining an earlier protest of North Wind challenging award to Navarro Research and Engineering, Inc. During the pendency of that protest, the agency had awarded a bridge environmental compliance and operations (ECO) services contract to Navarro. North Wind argued that the amendment failed to account for an OCI that it alleged Navarro had as a result of its access to North Wind’s proprietary information under the bridge ECO contract.
The GAO found that the agency had performed an independent investigation of North Wind’s allegations, and reasonably concluded both that Navarro performance of the bridge ECO contract did not create an OCI and that Navarro’s proposed mitigation approach would avoid any OCI in the future. The GAO noted that Navarro had responded in detail to the agency’s inquiry into Navarro’s OCI mitigation plan, and that any cost data provided by North Wind that it argued Navarro may have had access to had been processed and compiled with other subcontractor costs so as to not be identifiable to North Wind. The GAO concluded that the agency had not relied on Navarro’s self-assessment of whether an OCI existed, but had conducted its own investigation.
Generally, protestors are not required to protest that another firm has an impermissible OCI until after that firm has been selected for award. However, if a solicitation is issued on an unrestricted basis, the protestor is aware of the facts giving rise to a potential OCI, and the protestor has been advised by the agency that it considers the offeror with the potential OCI to be eligible for award, the protestor must protest before the closing time for receipt of proposals. If you suspect that the company performing a predecessor contract has an impermissible OCI, ask the agency during the question and answer period whether than company is eligible. If the agency states that they are, you must consider whether to file a preaward protest.