A Contracting Officer ("CO") has broad discretion in how to address both actual and apparent Organizational Conflicts of Interest ("OCIs"). Absent a showing that the CO acted unreasonably in excluding a protester from a procurement due to an OCI, GAO will not disturb agency determination. As noted below, by preparing the technical specification incorporated into the RFP, the Protester was conflicted from competing in the follow-on procurement.
Lucent Technologies World Services Inc., was designated the design/build contractor for the Army's Iraq Reconstruction Communication Sector ("IRCS") contract. Under that IDIQ contract, Lucent was to validate conceptual designs, assess existing communications infrastructure, and design the Phase One system and architecture of a nationwide Iraq communication system. Lucent accepted the task to analyze potential technologies, recommend the technology standard to be used, and prepare the technical specifications for the TETRA devices to be used in a communications system.
The specifications prepared by Lucent were not initially included in the follow-on RFP to competitively procure a contract for these devices. During the RFP process, the Army asked Lucent, as a task under its IDIQ contract, to assist in responding to offeror's questions on the RFP's specifications. When Lucent refused to assist in the task, citing its intent to submit a proposal under the follow-on RFP, the Army incorporated the Lucent-prepared specifications with some modification into that RFP. Subsequently, the CO notified Lucent that it had an OCI under FAR § 9.505-2 and was prohibited from award of the RFP's resultant TETRA contract.
In the ensuing post award protest, GAO held that the agency's OCI determination was reasonable and would not be disturbed.
OCIs need to be identified and addressed as early as possible in the acquisition process. FAR Part 9.5 requires that agencies place limitations on contracts ". . . to avoid, neutralize or mitigate significant conflicts before contract award to prevent unfair competitive advantage or the existence of conflicting roles that might impair a contractor's objectivity." Where the TETRA RFP's revised specifications were based on Lucent's prepared specification and Lucent sought to compete in that procurement, the CO reasonably found an OCI warranting exclusion of Lucent from the competition.
The lack of an OCI clause in Lucent's IRCS IDIQ contract did not limit the procuring agency's ability to address the actual or potential OCIs in the TETRA RFP procurement. Of note, Lucent opted to contest the basis for the CO's finding of an OCI instead of submitting a proposed mitigation plan during the procurement process. There was no requirement for the agency to provide Lucent a separate opportunity to submit a mitigation plan under this set of facts.
As a contractor, you need to be much more aware of the role you will play in a particular procurement or contract task and the potential implications of that role on follow-on procurements or tasks. Once you become aware of potential or actual conflicts, take appropriate early steps to avoid, neutralize or mitigate the situation. Timely submission and CO approval of a proper mitigation plan that identifies and resolves concerns arising from actual or potential OCIs can allow you to compete.
Michael Tuite contributed to this advisory.