Can it be that the drafters of the FAR dedicated a whole subpart’s worth of guidance to how and when to identify such conflicts, as well as how and when to mitigate the conflicts so identified, yet subscribed to the notion that the failure to follow these procedures could be cured by having the awardee swear up and down it did nothing improper? Of course not.           

If swearing up and down were enough, why would the drafters of the FAR have bothered to develop an extensive set of rules to deal with such conflicts, he asks. If swearing after the fact that no wrong was done was enough, the regulation would be meaningless, he suggests. 

In his opinion permanently enjoining the performance of the awarded contract in Netstar-1, Judge Allegra says the contracting officer’s delayed identification of the potential organizational conflict of interest and efforts to mitigate that conflict well after the fact were arbitrary, capricious and otherwise contrary to law. The expediency of obtaining after the fact declarations denying wrongdoing just do not cut it.

So, the Court of Federal Claims (COFC) will not “defenestrate” (read, “throw out the window”) the FAR provisions by countenancing the “post-award palliative” urged by the government. The agency has neither the discretion to ignore the FAR nor to render any of its provisions useless. To hold otherwise runs counter to the reasons for having the OCI regulations in the first place.

We’ve written about this case at the preliminary injunction stage. This is its last chapter at the COFC. On a day we’ve been thinking about agency discretion (October 19, 2011), Judge Allegra most poignantly and eloquently upholds the virtue of sticking to the regulations, book, chapter and verse. After all, why have them if the government can run rough shod all over them?

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