Conflict resolution dating

21-Aug-2019 10:38

We review the reasonableness of a contracting officers OCI investigation and, where an agency has given meaningful consideration to whether an OCI exists, we will not substitute our judgment for the agencys, absent clear evidence that the agencys conclusion is unreasonable. The record shows that, before leaving the USCG, the MPM sought and received a post-government-service employment ethics memorandum from the agency dated March 19, 2015, which specifically cleared the MPM to work as the program manager for a company with intentions to pursue the TASS procurement. D, Post-Government-Service Employment Ethics Memorandum, at 1. In this connection, Harkcon worked on the [Training and Technical Support Services] TTSS contract as a subcontractor. Our Office has determined in a number of protests that the use of firewalled subcontractors can adequately mitigate impaired objectivity OCIs. [8] As a final challenge against the OCI plan, Social Impact alleges that it does not adequately mitigate potential unequal access to information OCIs. AR, Tab 40, Final MSI OCI Mitigation Plan, at 9, 13. Various features of the plan support this statement. See AR, Tab 40, Final MSI OCI Mitigation Plan, at 11. The record further reflects that the contracting officer considered these procedures and determined that they reasonably addressed the potential for OCI[s]. Although Social Impact disagrees with that determination, it has not persuasively identified any material basis for concluding that the determination was unreasonable. A protester must identify hard facts that indicate the existence or potential existence of a conflict; mere inference or suspicion of an actual or potential conflict is not enough. It is well settled that an offeror may possess unique information, advantages, and capabilities due to its prior experience under a government contract--either as an incumbent contractor or otherwise and the government is not necessarily required to equalize competition to compensate for such an advantage, unless there is evidence of preferential treatment or other improper action. For example, the contracting officer states that the RFQ included specifications that favored STOPs products over the products of competitors, and that these specifications had to be removed. In contrast, the protester suggests that the program manager may have been a disgruntled former employee disappointed with the nature of her employment with, or the terms of her departure from, STOP, or the terms upon which she sold her stock in STOP. The protester therefore argues that the program manager actively attempted to steer the award away from STOP. These strict limitations reflect the reality that the potential harm flowing from such situations frequently is, by its nature, not susceptible to demonstrable proof of bias or prejudice.Following his retirement, the MPM worked as a consultant for Metris during proposal preparation, and was hired by Metris to serve as the program manager for the TASS effort. The protester alleges that the MPMs role as chief provided him access to nonpublic, competitively useful information about Harkcon. With regard to MSIs OCI plan itself, the record reflects that the plan establishes detailed procedures for identifying and mitigating potential OCIs. Social Impact argues that the plan lacks the specificity and scope necessary to effectively mitigate this type of OCI. As its primary example of this issue, Social Impact claims that the plan presumes documents with competitively useful information will come marked as OCI sensitive. In reality, Social Impact contends, such information is unlikely to be marked. As another example, Social Impact claims that the plan does not establish a procedure for reviewing and marking incoming information as sensitive, which may lead to competitively useful information being routed to MSI employees outside the firewall or not subject to nondisclosure agreements. In response, the contracting officer states that the OCI plan requires MSIs [DELETED] to review documents for OCI issues regardless of whether they are marked as sensitive or proprietary. To conclude, Social Impacts claims regarding the agencys treatment of potential OCIs in this procurement are denied. B-412941, B-412941.2: Jul 8, 2016)An unequal access to information OCI exists where a firm has access to nonpublic information as part of its performance of a government contract, and where that information may provide the firm a competitive advantage in a later competition for a government contract. We need not resolve the question of whether the program managers participation in the acquisition favored, disfavored, or had no impact on STOP. Department of the Navy--Recon., B‑286194.7, May 29, 2002, 2002 CPD 76 at 11. As a final matter, we are concerned about one other aspect of the events surrounding this apparent conflict of interest. As discussed above, the contracting officer claims to have used her conclusion about BIs allegedly proprietary information in STOPs protest as a starting point for her subsequent investigative efforts surrounding the alleged OCI on the part of STOP. First, we note that while Safeguard's proposal disclosed the contracts at issue, it did not "recognize [] this perceived conflict on its own," as the agency asserts. no actual OCIs exist between [the UPIC and MMIS] contracts.").

Unequal Access to Information AFS next alleges that IBM has an unequal access to information OCI because [t]he information to which IBM has access--financial information from all [Enterprise Resource Planning] systems--may provide IBM with a competitive advantage in the GFEBS procurement. An unequal access to information OCI exists where a firm has access to nonpublic information as part of its performance of a government contract, and where that information may provide the firm a competitive advantage in a later competition for a government contract. Here, again, the protesters allegation is largely speculative and does not allege specific facts regarding how the kind of information available to IBM in the FSPS role could possibly provide it with a competitive advantage with regard to GFEBS. The CO also found that the advisors actions did not give rise to PCI, based on what the CO viewed as the advisors limited role in support of the SSEB. In this regard, the CO stated that the advisors role did not involve recommending ratings for an offerors proposal, or recommending a particular offeror for award. Old SAIC was reorganized into New SAIC and Leidos in September 2013. The CO also concluded, as a result of her OCI investigation, that there were significant changes to the initial RFP as a result of BAEs protest of the award to L‑3. As a result of the ambiguous language, L-3 proposed to connect via Io LS, and the SSEB evaluators accepted L-3s solution -- based directlyon the lack of clarity in the solicitation. E.g., E-Mail From the Contracting Officer to the Program Manager, January 29, 2015.Advance Med argues that although the solicitation expressly informed offerors of CMS's determination that an OCI existed where an offeror (or its affiliates) served both as a UPIC [unified program integrity contractor] and as a MMIS [Medicaid management information systems] contractor in the same geographic jurisdiction, the agency failed to meaningfully consider the conflict that arose here due to Safeguard's parent company's performance of MMIS contracts in four states in the southeast jurisdiction. Our Office reviews the reasonableness of a contracting officer's OCI investigation and, where an agency has given meaningful consideration to whether a significant conflict of interest exists, we will not substitute our judgment for the agency's, absent clear evidence that the agency's conclusion is unreasonable. The primary responsibility for determining whether a conflict is likely to arise, and the resulting appropriate action, rests with the contracting agency. In response, the agency pointed to an email in which CMS asked Safeguard to verify whether the Florida and Georgia Medicaid contracts support has changed, and Safeguard's response. In its responses to GAO's questions, the agency explained that performance by one entity as both an MMIS provider and as a UPIC is merely a perceived conflict and that the agency discussed this "perceived conflict" with Safeguard prior to the award of this task order, the award of the task order for the northeastern jurisdiction, and the award of the UPIC. First, the agency's characterization of these types of conflicts as merely presenting a "perceived conflict" is inconsistent with the clear language of the solicitation, which states that they present a conflict. Accordingly, since there is nothing in the record documenting that the agency meaningfully considered Safeguard's conflict, we conclude that the agency's actions here were not reasonable, and sustain this ground of protest. In this regard, the protester notes that when reviewing potential conflicts of interest arising from the role of individuals under FAR subpart 3.1, agencies have an obligation to avoid even the appearance of impropriety in government procurements. We do not agree with the protester, however, that the COs finding that there was an appearance of impropriety precluded further inquiry as to whether this conflict could be mitigated or avoided. AR, Tab 11, PWS, at 7 (testing activities will include operational functions necessary to determine acceptability). Guident Techs., Inc., B-405112.3, June 4, 2012, 2012 CPD 166 at 7. Once an agency has given meaningful consideration to whether an OCI exists, our Office will not sustain a protest challenging a determination in this area unless the determination is unreasonable or unsupported by the record. While the CO's memorandum included information from the offeror's proposal, internet and database searches, a conference call, and identified several potential OCIs that required "actions in order to avoid, neutralize or mitigate actual, apparent or potential [OCIs]," it did not include discussion of the MMIS-related contracts held by Safeguard's parent company. In this regard, the CO concluded that unless specifically identified, the CO did not identify any concerns "with the offeror's assessment of the [OCIs] associated with the contracts listed in the submission." Id. During the development of the protest, our Office requested that the agency provide additional information pertaining to its consideration of the alleged conflict, including any documentation of the conference call referenced in the CO's preaward OCI memorandum. However, nothing in the record shows the agency's consideration or analysis of this information. We find the agency's responses troubling for several reasons. Furthermore, the record supports the agencys determination that the testing at issue is focused on whether the various DCGS hardware and software components operate as a whole, not whether the specific software provided under task order 57 is functioning as intended.Make recommendations to [the Assistant Secretary of the Army (Financial Management and Comptroller)] staff on the actions and time necessary to correct the abnormal balances, correcting as many as possible before the next reporting period. AR, Tab 36, OCI Report, at 4; Tab 36j (transaction statement); Tab 36k (transaction statement). The CO nonetheless concluded there was compelling evidence that the advisors role did not create a disqualifying PCI. The CO found that the advisor misunderstood that his stock in Leidos was frozen to transactions, and that it would be converted to shares in the Vanguard fund. We agree with the protester that our Office has generally held that foreseeability is not a dispositive inquiry as to whether a contractors role in preparing materials that are used in a solicitation gives rise to a biased ground rules OCI. Moreover, even if we were to agree with BAE that the changed circumstances regarding Old SAICs reorganization and the passage of time did not address the possibility that Old SAIC could have skewed the competition to favor Leidos in the future, we conclude that the COs OCI analysis reasonably found that the changes to the revised RFP after the reorganization of Old SAIC addressed or mitigated any potential conflict that might have attached to Leidos. Although the protester disputes the COs characterization of the revisions as significant, we do not think this disagreement provides a basis to sustain the protest. The CO noted that the advisor had signed numerous nondisclosure agreements throughout his support of the Armys AIE requirements, and was designated as the point of contact for an NDA between Old SAIC and BAE in March 2013 that specifically addressed the AIE-3 procurement. In this regard the protester argues that the COs investigation did not adequately examine whether the NDAs were effective in avoiding the disclosure of information by the Old SAIC employees who had access to competitively sensitive information. As our Office has held, mitigation efforts that screen or wall-off certain individuals within a company from others, in order to prevent an improper disclosure of information, may be an effective means to address an unequal access to information OCI. The record here shows that the CO considered the potential OCIs arising from Old SAICs access to competitively useful information, as well as the New SAIC advisors access. Guident Techs., Inc., B-405112.3, June 4, 2012, 2012 CPD 166 at 7; see Axiom Res. E-Mail from the Contract Specialist to the Program Manager and Chairman of the Technical Evaluation Board, Apr. However, this form was never executed by the program manager or provided to the cognizant agency personnel until after the instant protest was filed in our Office.Track efforts to identify issues that reoccur, and report trend data. In considering whether IBM might have an unequal access OCI, the COs inquiry focused on the type of information available to IBM in the course of its FSPS performance. In our view, the situation here presents sufficiently hard facts to demonstrate the existence of, or potential for, an OCI. Upon discovering that Leidos was a potential offeror, the advisor disclosed his ownership of Leidos stock to the SSEB chair, and explained that he believed that the anticipated conversion of the Leidos stock would result in divestiture of any financial interest that would affect his role with the SSEB. In April 2015, the advisor became aware as result of a quarterly portfolio statement that he still held approximately ,000 in Leidos stock, and that this stock was not subject to the conversion described in the September 2014 notice. The SSEB chairperson advised the CO of the advisors stock ownership in April 2015. The CO found that the advisor had confirmed divestiture of the stock holdings, and that the advisors role was in the capacity of a technical advisor, not a decision maker. The CO concluded that, based on these facts and the fact that the award decision had not yet been made, there was no basis to exclude the advisor from assisting the SSEB or to otherwise cancel the procurement. In her subsequent OCI investigation in response to BAEs initial protest (B-411810), the CO acknowledged that the advisors ownership of Leidos stock during the time he assisted the SSEB created the appearance of a potential conflict: It is true that [the advisor] owned slightly more than the de minimus amount of stock in Leidos; therefore I have determined that the appearance of a personal financial conflict of interest exists in accordance with FAR 3.11, Preventing Personal Conflicts of Interest for Contractor Employees Performing Acquisition Functions. In this regard, the CO identified specific areas of the proposal that were changed as a result of BAEs challenge to the award to L-3, and why these changes altered the solicitation in a manner that avoided the possibility that Old SAICs role could have favored Leidos. On this record, we find no basis to sustain the protest. The CO also found that the New SAIC advisor (discussed above) was the only relevant employee who had access to offerors proposals. For this reason, the protester argues that the COs after-the-fact reliance on the NDAs did not address or mitigate the possibility that Leidos gained access to competitively useful nonpublic information as a result to Old SAICs access to information during the performance of its acquisition and program support BPA. See Axiom Resource Mgmt., Inc., B-298870.3, B-298870.4, July 12, 2007, 2007 CPD 117 at 7 n.3; Aetna Govt Health Plans, Inc., supra, at 13. Specifically, the CO concluded that the terms of the applicable NDAs prohibited the affected Old SAIC employees from disclosing nonpublic information that could have given other Old SAIC employees, and in turn Leidos employess, an unfair competitive advantage. The lengthy MIS PWS, however, imposes numerous requirements and responsibilities on the MIS contractor. As a general matter, the Federal Acquisition Regulation (FAR) requires that contracting officers avoid, neutralize or mitigate potential significant OCIs. An impaired objectivity OCI, as addressed in FAR subpart 9.5 and the decisions of our Office, arises where a firms ability to render impartial advice to the government would be undermined by the firms competing interests. We review the reasonableness of a COs OCI investigation and, where an agency has given meaningful consideration to whether a significant conflict of interest exists, we will not substitute our judgment for the agencys, absent clear evidence that the agencys conclusion is unreasonable. E‑Mail from the Contract Specialist to the Program Manager, Aug. There also is no explanation in the record concerning why the form was not obtained from the program manager in April when it was requested.

Unequal Access to Information AFS next alleges that IBM has an unequal access to information OCI because [t]he information to which IBM has access--financial information from all [Enterprise Resource Planning] systems--may provide IBM with a competitive advantage in the GFEBS procurement. An unequal access to information OCI exists where a firm has access to nonpublic information as part of its performance of a government contract, and where that information may provide the firm a competitive advantage in a later competition for a government contract. Here, again, the protesters allegation is largely speculative and does not allege specific facts regarding how the kind of information available to IBM in the FSPS role could possibly provide it with a competitive advantage with regard to GFEBS. The CO also found that the advisors actions did not give rise to PCI, based on what the CO viewed as the advisors limited role in support of the SSEB. In this regard, the CO stated that the advisors role did not involve recommending ratings for an offerors proposal, or recommending a particular offeror for award. Old SAIC was reorganized into New SAIC and Leidos in September 2013. The CO also concluded, as a result of her OCI investigation, that there were significant changes to the initial RFP as a result of BAEs protest of the award to L‑3. As a result of the ambiguous language, L-3 proposed to connect via Io LS, and the SSEB evaluators accepted L-3s solution -- based directlyon the lack of clarity in the solicitation. E.g., E-Mail From the Contracting Officer to the Program Manager, January 29, 2015.

Advance Med argues that although the solicitation expressly informed offerors of CMS's determination that an OCI existed where an offeror (or its affiliates) served both as a UPIC [unified program integrity contractor] and as a MMIS [Medicaid management information systems] contractor in the same geographic jurisdiction, the agency failed to meaningfully consider the conflict that arose here due to Safeguard's parent company's performance of MMIS contracts in four states in the southeast jurisdiction. Our Office reviews the reasonableness of a contracting officer's OCI investigation and, where an agency has given meaningful consideration to whether a significant conflict of interest exists, we will not substitute our judgment for the agency's, absent clear evidence that the agency's conclusion is unreasonable. The primary responsibility for determining whether a conflict is likely to arise, and the resulting appropriate action, rests with the contracting agency. In response, the agency pointed to an email in which CMS asked Safeguard to verify whether the Florida and Georgia Medicaid contracts support has changed, and Safeguard's response. In its responses to GAO's questions, the agency explained that performance by one entity as both an MMIS provider and as a UPIC is merely a perceived conflict and that the agency discussed this "perceived conflict" with Safeguard prior to the award of this task order, the award of the task order for the northeastern jurisdiction, and the award of the UPIC. First, the agency's characterization of these types of conflicts as merely presenting a "perceived conflict" is inconsistent with the clear language of the solicitation, which states that they present a conflict. Accordingly, since there is nothing in the record documenting that the agency meaningfully considered Safeguard's conflict, we conclude that the agency's actions here were not reasonable, and sustain this ground of protest. In this regard, the protester notes that when reviewing potential conflicts of interest arising from the role of individuals under FAR subpart 3.1, agencies have an obligation to avoid even the appearance of impropriety in government procurements. We do not agree with the protester, however, that the COs finding that there was an appearance of impropriety precluded further inquiry as to whether this conflict could be mitigated or avoided. AR, Tab 11, PWS, at 7 (testing activities will include operational functions necessary to determine acceptability).

Guident Techs., Inc., B-405112.3, June 4, 2012, 2012 CPD 166 at 7. Once an agency has given meaningful consideration to whether an OCI exists, our Office will not sustain a protest challenging a determination in this area unless the determination is unreasonable or unsupported by the record. While the CO's memorandum included information from the offeror's proposal, internet and database searches, a conference call, and identified several potential OCIs that required "actions in order to avoid, neutralize or mitigate actual, apparent or potential [OCIs]," it did not include discussion of the MMIS-related contracts held by Safeguard's parent company. In this regard, the CO concluded that unless specifically identified, the CO did not identify any concerns "with the offeror's assessment of the [OCIs] associated with the contracts listed in the submission." Id. During the development of the protest, our Office requested that the agency provide additional information pertaining to its consideration of the alleged conflict, including any documentation of the conference call referenced in the CO's preaward OCI memorandum. However, nothing in the record shows the agency's consideration or analysis of this information. We find the agency's responses troubling for several reasons. Furthermore, the record supports the agencys determination that the testing at issue is focused on whether the various DCGS hardware and software components operate as a whole, not whether the specific software provided under task order 57 is functioning as intended.

Make recommendations to [the Assistant Secretary of the Army (Financial Management and Comptroller)] staff on the actions and time necessary to correct the abnormal balances, correcting as many as possible before the next reporting period. AR, Tab 36, OCI Report, at 4; Tab 36j (transaction statement); Tab 36k (transaction statement). The CO nonetheless concluded there was compelling evidence that the advisors role did not create a disqualifying PCI. The CO found that the advisor misunderstood that his stock in Leidos was frozen to transactions, and that it would be converted to shares in the Vanguard fund. We agree with the protester that our Office has generally held that foreseeability is not a dispositive inquiry as to whether a contractors role in preparing materials that are used in a solicitation gives rise to a biased ground rules OCI. Moreover, even if we were to agree with BAE that the changed circumstances regarding Old SAICs reorganization and the passage of time did not address the possibility that Old SAIC could have skewed the competition to favor Leidos in the future, we conclude that the COs OCI analysis reasonably found that the changes to the revised RFP after the reorganization of Old SAIC addressed or mitigated any potential conflict that might have attached to Leidos. Although the protester disputes the COs characterization of the revisions as significant, we do not think this disagreement provides a basis to sustain the protest. The CO noted that the advisor had signed numerous nondisclosure agreements throughout his support of the Armys AIE requirements, and was designated as the point of contact for an NDA between Old SAIC and BAE in March 2013 that specifically addressed the AIE-3 procurement. In this regard the protester argues that the COs investigation did not adequately examine whether the NDAs were effective in avoiding the disclosure of information by the Old SAIC employees who had access to competitively sensitive information. As our Office has held, mitigation efforts that screen or wall-off certain individuals within a company from others, in order to prevent an improper disclosure of information, may be an effective means to address an unequal access to information OCI. The record here shows that the CO considered the potential OCIs arising from Old SAICs access to competitively useful information, as well as the New SAIC advisors access. Guident Techs., Inc., B-405112.3, June 4, 2012, 2012 CPD 166 at 7; see Axiom Res. E-Mail from the Contract Specialist to the Program Manager and Chairman of the Technical Evaluation Board, Apr. However, this form was never executed by the program manager or provided to the cognizant agency personnel until after the instant protest was filed in our Office.

Track efforts to identify issues that reoccur, and report trend data. In considering whether IBM might have an unequal access OCI, the COs inquiry focused on the type of information available to IBM in the course of its FSPS performance. In our view, the situation here presents sufficiently hard facts to demonstrate the existence of, or potential for, an OCI. Upon discovering that Leidos was a potential offeror, the advisor disclosed his ownership of Leidos stock to the SSEB chair, and explained that he believed that the anticipated conversion of the Leidos stock would result in divestiture of any financial interest that would affect his role with the SSEB. In April 2015, the advisor became aware as result of a quarterly portfolio statement that he still held approximately ,000 in Leidos stock, and that this stock was not subject to the conversion described in the September 2014 notice. The SSEB chairperson advised the CO of the advisors stock ownership in April 2015. The CO found that the advisor had confirmed divestiture of the stock holdings, and that the advisors role was in the capacity of a technical advisor, not a decision maker. The CO concluded that, based on these facts and the fact that the award decision had not yet been made, there was no basis to exclude the advisor from assisting the SSEB or to otherwise cancel the procurement. In her subsequent OCI investigation in response to BAEs initial protest (B-411810), the CO acknowledged that the advisors ownership of Leidos stock during the time he assisted the SSEB created the appearance of a potential conflict: It is true that [the advisor] owned slightly more than the de minimus amount of stock in Leidos; therefore I have determined that the appearance of a personal financial conflict of interest exists in accordance with FAR 3.11, Preventing Personal Conflicts of Interest for Contractor Employees Performing Acquisition Functions. In this regard, the CO identified specific areas of the proposal that were changed as a result of BAEs challenge to the award to L-3, and why these changes altered the solicitation in a manner that avoided the possibility that Old SAICs role could have favored Leidos. On this record, we find no basis to sustain the protest. The CO also found that the New SAIC advisor (discussed above) was the only relevant employee who had access to offerors proposals. For this reason, the protester argues that the COs after-the-fact reliance on the NDAs did not address or mitigate the possibility that Leidos gained access to competitively useful nonpublic information as a result to Old SAICs access to information during the performance of its acquisition and program support BPA. See Axiom Resource Mgmt., Inc., B-298870.3, B-298870.4, July 12, 2007, 2007 CPD 117 at 7 n.3; Aetna Govt Health Plans, Inc., supra, at 13. Specifically, the CO concluded that the terms of the applicable NDAs prohibited the affected Old SAIC employees from disclosing nonpublic information that could have given other Old SAIC employees, and in turn Leidos employess, an unfair competitive advantage. The lengthy MIS PWS, however, imposes numerous requirements and responsibilities on the MIS contractor. As a general matter, the Federal Acquisition Regulation (FAR) requires that contracting officers avoid, neutralize or mitigate potential significant OCIs. An impaired objectivity OCI, as addressed in FAR subpart 9.5 and the decisions of our Office, arises where a firms ability to render impartial advice to the government would be undermined by the firms competing interests. We review the reasonableness of a COs OCI investigation and, where an agency has given meaningful consideration to whether a significant conflict of interest exists, we will not substitute our judgment for the agencys, absent clear evidence that the agencys conclusion is unreasonable. E‑Mail from the Contract Specialist to the Program Manager, Aug. There also is no explanation in the record concerning why the form was not obtained from the program manager in April when it was requested.

We review the reasonableness of a contracting officers OCI investigation and, where an agency has given meaningful consideration to whether a significant conflict of interest exists, we will not substitute our judgment for the agencys, absent clear evidence that the agencys conclusion is unreasonable. Biased Ground Rules A biased ground rules OCI exists where a firm, as part of its performance of a government contract, has in some sense set the ground rules for another government contract by, for example, writing the statement of work or the specifications: the primary concern is that the firm could skew the competition, whether intentionally or not, in favor of itself. E.g., The Jones/Hill Joint Venture, B-286194.4 et al., Dec. In that protest, DRS alleged that based on the findings of the OCI report, the PWS for the FOFH task order overstated the agencys actual requirements and thus prevented a fair competition. In the alternative, to the extent the Army argued that the solicitation accurately reflected the agencys requirements, DRS contended that LMIS would have an impaired objectivity OCI as it would be responsible under the FOFH task order for evaluating the deliverables it produces under task order 57. For example, the agencys OCI report makes no mention of the PWS requirement that the awardee review and report issues with system developer deliverables, which DRS alleges would require LMIS to review the documentation deliverables it provides under task order 57. AR, Tab 27, DRS Technical Proposal, at 10; AR, Tab 31, LMIS Technical Proposal, at 12, 16.