Link: GAO Opinion
Agencies: U.S. General Services Administration (GSA), Department of the Air Force
Disposition: Protest sustained.
Keywords: Discussions; OCI
An RFQ was issued by the U.S. General Services Administration (GSA) as a negotiated “best value” acquisition, specifying that a task order would be issued under the successful vendor’s Federal Supply Schedule (FSS) contract on the basis of price and several non-price considerations, with the non-price considerations being collectively more important than price. GSA received two quotations, from The Analysis Group (TAG) and Science Applications International Corporation (SAIC). After hearing oral presentations from both vendors and evaluating their quotations, the agency determined that SAIC’s quotation was the best value. While SAIC’s proposed price was higher than TAG’s, SAIC was rated excellent overall, whereas TAG was rated acceptable.
TAG asserted that GSA conducted improper discussions with SAIC without providing a similar opportunity for TAG. Although GSA purportedly made the award on the basis of initial quotations, without engaging in discussions with either party, the record showed that, subsequent to the submission of quotations and the oral presentations, GSA and SAIC had an exchange concerning an indemnity provision, which SAIC removed from its proposal. By affording SAIC an opportunity to remove the indemnification clause (which would have made their quotation unacceptable) from its quotation, the agency essentially allowed SAIC to make its quotation acceptable. This was determined to be a material revision (and discussion), and since discussions with SAIC occurred, GSA was obliged to afford TAG a similar opportunity to participate in discussions.
In addition, TAG asserts that SAIC has an “impaired objectivity” organization conflict of interest (OCI). In this regard, the RFQ requires the successful firm to provide expertise to the Air Force (the agency that GSA was acquiring the contract on behalf of) in a number of subject areas. For this claim, the successful contractor was required to provide a broad range of objective advisory and assistance services, technical analysis, and support in the area of counter-proliferation of weapons of mass destruction, specifically, combating chemical, biological, radiological and nuclear (C-CBRN) weapons. According to TAG, this posed an impaired objectivity OCI for SAIC because the firm also sells C-CBRN-related detection and prevention products and services. Thus, TAG felt that SAIC would be unable to provide objective advice in this area because any advice given could affect sales of its products.
GSA responded that it considered whether SAIC might have an impaired objectivity OCI and concluded that it did not. The CO reviewed SAIC’s information and determined that there was no reason to conclude that SAIC had an OCI. The agency also maintains that it intended to monitor SAIC during performance to ensure that there were no OCIs. The Federal Acquisition Regulation specifies that an OCI exists where, because of activities or relationships with other person or organizations, a person or organization is unable or potentially unable to render impartial assistance or advice to the government. FAR § 2.101.
COs are required to give meaningful, deliberate consideration to information that may shed light on potential OCIs. An agency may not, in effect, delegate to the contractor itself complete responsibility for identifying potential OCIs, but must take active steps in considering information outside of that provided by the contractor in determining the level of appropriateness.
Here, GSA did nothing to independently consider or evaluate whether SAIC had an OCI, rather the GAO determined that GSA essentially delegated its determination of OCIs to SAIC, which is flatly improper.
In light of the above, GAO recommended the reopening of the acquisition and encouraged GSA to engage in meaningful discussions with TAG and SAIC, and that a full review should be performed to determine whether SAIC has a potential or actual OCI.