Recent Organizational Conflict Decision

Posted on 8/23/2011 9:23 AM

GAO has just handed down a decision in an OCI case sustaining a protest where the Army Corps of Engineers investigated the awardee's alleged unequal access to information based on the awardee's hiring of a high-level government employee from the office responsible for the project but limited its review to the former government employee had and did not consider his access to non-public information.  The former government employee also continued daily contact with members of the source selection team and access to inside information.
Protesters alleged an impermissible OCI in that the Corps failed to reasonably investigate or mitigate a possible OCI.  GAO points out that FAR requires that contracting officials avoid, neutralize or mitigate potential significant conflicts of interest so as to prevent an unfair competitive advantage or the existence of conflicting roles that might impair a contractor's objectivity.  FAR expressly directs contracting officers to examine the facts carefully.  GAO goes on to quote the Court of Appeals for the Federal Circuit's "hard facts" rule -- suspicions are not enough.  GAO concludes that the contracting officer did not conduct a reasonable investigation to determine if an unfair competitive advantage existed.  The CO focused only on the precise role the former government had at the Corps.
This is a lengthy decision.  In sum, GAO found that hard facts exist to suggest the existence of a potential, if not actual OCI that the Corps failed to evaluate and avoid, neutralize or mitigate.  The Corps failed to consider whether the former government employee had important inside information and whether his having this information provided an advantage to the awardee.  GAO determined this failure to investigate tainted the integrity of the procurement process and therefore sustained the protest (it also was sustained on other grounds).
Hiring former government employees may be a great business move.  But be wary of the OCI pitfalls.
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