Link: GAO Opinion
Agency: Department of the Navy
Disposition: Protest denied.
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GAO Digest:
- Protester’s assertion that awardee, the incumbent contractor, had improper organizational conflict of interest due to involvement in providing level of effort information for incorporation in solicitation is untimely where record shows that (1) protester was aware of awardee’s involvement, (2) protester brought its concerns to agency’s attention, (3) agency responded that awardee’s involvement was not improper, and (4) protester did not challenge agency’s failure to preclude awardee from competing prior to closing time for receipt of proposals.
- Protester’s allegation of agency bias in favor of awardee is denied where record, including agency’s unrebutted responses denying bias, contains no evidence of bias or bad faith on part of agency personnel.
General Counsel P.C. Highlight:
Raydar principally argues that Tri Star had an improper organizational conflict of interest (OCI), and that the evaluation of its own proposed key personnel was unreasonable. Under the Bid Protest Regulations, protests based upon alleged improprieties in a solicitation that are apparent prior to the time set for receipt of initial proposals must be filed prior to that time. As a general rule, a protester is not required to protest that another firm has an impermissible OCI until after that firm has been selected for award. A different rule applies, however, where a solicitation is issued on an unrestricted basis, the protester is aware of the facts giving rise to the potential OCI, and the protester has been advised by the agency that it considers the potential offeror eligible for award. In such cases, the protester cannot wait until an award has been made to file its protest of an impermissible OCI, but instead must protest before the closing time for receipt of proposals.
The record shows that the protester was aware of Tri Star’s employee’s involvement with the preparation of the solicitation as early as February 26, 2008. In this regard, in an e-mail exchange with the agency on that date, Raydar stated that it is “a bit uncomfortable” with Tri Star’s involvement “in the casting of the new contract offerings,” and the agency responded the same day that Tri Star’s employee was only “data collecting” to help the agency compile contract estimates and would not have any role in source selection or have any influence on contract award. There is no evidence of any further objection by Raydar. Here, Raydar’s concerns that a specific Tri Star employee was involved in the preparation of the solicitation arose prior to the RFP’s closing date. Further, it is clear that Raydar was aware that Tri Star was likely to compete, and that the agency did not consider Tri Star to have an OCI that precluded it from receiving the award. Under these circumstances, Raydar’s protest is untimely because it was not filed prior to the closing time for receipt of proposals. In any event, the record does not support Raydar’s claim that Tri Star had an OCI or that Tri Star gained a competitive advantage. While Raydar claims that Tri Star “was in a position to influence or otherwise tailor” the RFP to meet its particular strengths, it does not allege any specific facts showing that an OCI exists. The record shows that Tri Star did not participate in the preparation of the specifications or the statement of work, and that the Tri Star employee’s efforts were limited to collecting data regarding Tri Star’s own level of effort under Tri Star’s current contract. Raydar does not explain how Tri Star’s involvement in this manner could have created a competitive advantage, and no actual or potential advantage is otherwise apparent to GAO. Further, all of the level of effort information was provided to Raydar and other potential offerors in the solicitation.
Raydar next asserts that the agency exhibited bias in favor of Tri Star. Prejudicial motives will not be attributed to contracting officials on the basis of unsupported allegations, inference, or supposition. Raydar has not sufficiently supported its allegations. Regarding access to government space, while the agency confirms that Tri Star did have access to space, it explains that this was by virtue of its status as the incumbent contractor, and was not provided for purposes of this procurement. The agency further explains that, as the incumbent subcontractor, Raydar had similar access to Navy property. The agency reports that Tri Star never submitted a request to the contracting officer for access to Navy space for the purpose of gathering physical space and equipment requirements data. Regarding Raydar’s assertion that Tri Star was allowed to propose the use of government space, thereby creating a “favorable cost position,” the agency responds that it is not aware of any NSWC Crane facilities that have been leased to Tri Star or to any of its subcontractors. The protest is denied.