The Government Accountability Office (GAO) recently has issued a decision which can be used as a primer on the current state of the law on organizational conflicts. The protester had alleged that the leader of the source selection evaluation team had been the program manager for another contract being performed by the firm selected for award.
The government interviewed agency employees involved in solicitation drafting to determine if the person in question had any influence in its drafting, and concluded he had not. The agency further determined that the lead had left his position prior to involvement in evaluating proposals. The agency also investigated the possibility of unequal access to information. Agency employees took extraordinary precautions to prevent the disclosure of source selection sensitive information.
GAO pointed out that FAR requires that contracting officials avoid, neutralize or mitigate potential significant conflicts of interest. The responsibility for determining a conflict of interest rests with the agency. "The situations in which OCI's arise, as described in FAR subpart 9.5 and the decisions of our Office, can be broadly categorized into three groups: biased ground rules, unequal access to information, and impaired objectivity."
GAO reviews the reasonableness of the agency's investigation, however. But GAO will not substitute its judgment for the agency's, absent clear evidence the agency's conclusion is unreasonable. (Sound familiar?) A protester must identify "hard facts" indicating the existence or potential existence of a conflict; mere inference or suspicion of an actual or potential conflict is not enough. "The identification of conflicts of interest are fact-specific inquiries that require the exercise of considerable discretion."
In its recent decision, GAO said the protester had not identified the necessary hard facts so the protest was denied.
GAO has consistently applied these conflict of interest rules and is in perfect synchronization now with the Court of Federal Claims (COFC). The guidance is clear, but as GAO says, the cases are fact-specific and there is room for discretion.
Postscript: We should add that we continue to oppose any changes to the regulations on organization conflicts. The law is now well settled at GAO and the COFC, the discretion of the contracting officer is well protected and the directions to contractors and grounds for protest are clear.