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The primary responsibility for determining whether a conflict is likely to arise, and the resulting appropriate action, rests with the contracting agency. SMS first argues that ASMR had a biased ground rules OCI. The contracting officer thereafter concluded that:[Accenture], ASM[R]s parent company, did not have access to any privileged data that would provide it with a competitive advantage under the current NSD re-compete requirement as a result of performing [the NSD assessment task order]. Thus, contrary to Social Impacts claim, the record shows that the agency has not and will not rely only on MSIs assessment of whether OCIs exist. In response, the contracting officer first describes how only a small amount of work‑‑less than eight percent of the contract budget--can give rise to an impaired objectivity OCI on the part of MSI. She then describes how the solicitation established a preference for the use of local subcontractors, and points out that MSIs OCI plan--[DELETED]--advances this preference. at 13-14 (citing RFP at 21; AR, Tab 32, MSI Revised Technical Proposal, at 11, 13, 20). The contracting officer also described how she discussed the recent evaluation work of local subcontractors with her technical office and learned of no quality concerns with the evaluations. Finally, the contracting officer states that in the last five years, neither the USAID inspector generals office, nor the cognizant regional inspector generals office, has reported any collusion among Indonesian firms in connection with USAID programs. We further recommend that the agency cancel its RFQ and begin its acquisition anew after considering whether the facts here require recusal of the program manager (and possibly other agency contracting officials) from the agencys subsequent acquisition for these requirements. In this regard, Signature Performance argues that Benefit Recoverys knowledge of ABACUS gives it greater insight into the functionality of the software and the amount of labor required to complete tasks using the system. Protest at 4-5. The existence of an advantage, in and of itself, does not constitute preferential treatment by the agency, nor is such a normally occurring advantage necessarily unfair. Signature Performance in essence complains that Benefit Recovery gained a competitive advantage as a result of its knowledge and experience as the owner of the commercial software upon which ABACUS is based and its experience customizing the software for DOD. In this regard, the contracting officer interviewed via questionnaire five Army personnel from OAA and [Army Program Executive Office Enterprise Information System] PEO EIS. The personnel with knowledge of DTSs ECMS support tasks and NESs role on the OAA Tiger Team maintained that NES did not have access to DTS proprietary information.
The record reflects that in performing her OCI review, the contracting officer reasonably reviewed all pertinent information. In sum, the protester fails to show that the contracting officer was unaware of, or failed to consider, all relevant information when reviewing ASMRs potential OCIs. B-412948.2: Jul 20, 2016) Organizational Conflicts of Interest Social Impact alleges that MSIs OCI plan does not adequately mitigate impaired objectivity and unequal access to information types of OCI. 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 with a competitive advantage in a later competition for a government contract. AR, Tab 21, Questionnaire C (chief, IT acquisition program manager, ECMS), at 4. As relevant here, an unequal access to information OCI exists where a firm has access to nonpublic information as part of its performance of a government contract that may provide the firm a competitive advantage in a later competition. that is relevant to the contract but is not available to all competitors, and such information would assist that contractor in obtaining the contract. In reviewing bid protests that challenge an agencys conflict of interest determinations, our Office reviews the reasonableness of the COs 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. 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. The objectives of the ECMS support effort are to support Army electronic publishing and to enable the automation of forms-based business processes in support of the Army Publishing Directorates mission to provide quality publications and forms. Lastly, the task order would provide senior engineering resources for the architecture, engineering and design, installation and support of an Army enterprise Voice over Internet Protocol (Vol P)/Unified Capabilities (UC) environment. Here, we find reasonable the agencys conclusion that any DTS staffing information and SOPs in support of the ECMS effort were of no relevance or competitive usefulness to NES in responding to the PEO EIS engineering support services RFQ.
First, a CO is required to identify potential conflicts of interest as early in the acquisition process as possible. Second, a CO is expected to anticipate potential significant conflicts, and recommend steps to resolve such conflicts, before the solicitation is issued. As relevant here, if a CO determines that an apparent successful offeror has a conflict that cannot be avoided or mitigated, the CO is required to either: (1) notify and advise the contractor of the conflict and allow the contractor to address the conflict; (2) withhold the award, if after notifying the contractor, the CO concludes that the conflict cannot be resolved; or (3) submit a request to waive the conflict. During the development of the protest, our Office requested that the agency provide any existing documentation of the COs analysis regarding HPESs OCI mitigation plan, as opposed to the analysis performed in the solicitation planning phase. In response, the agency stated that [o]ther than what has already been submitted in the [a]gency [r]eport, there is no other documentation regarding the [COs] analysis of HPESs OCI mitigation plan. Agency Response to GAO RFI at 2. The agency contends that on these bases any actual OCIs are eliminated. Here, the fact that the agency identified a potential conflict of interest during the solicitation planning process, and attempted to provide generalized mitigation measures in the solicitation, did not address whether an award to a particular offeror, like HPES, would create an OCI. Thus, we have no basis to question the contracting officers conclusion that ASMRs participation in this procurement does not raise potential OCI concerns. The PWS for the Accenture task order required the contractor to assess the current VA National Service Desk management, operations, procedures and processes and recommend comprehensive improvements in the form of a to-be-model. As part of its performance of the NSD assessment task order, Accenture prepared and submitted an OCI mitigation plan so as to prevent organizational conflicts with future VA requirements. Notably, however, Accenture did not prepare a set of requirements, or work statement, for performance of the NSD function. The contracting officer explains the VA ordered the Mc Kinsey study of the NSD function because it found the earlier Accenture study to be so generic in nature, and to obtain the assistance it needed to generate [the] PWS for the NSD re-compete effort. In addition to the recommendations included in its study, Mc Kinsey also drafted proposed PWS language for the VAs consideration for use in the subsequent NSD solicitation. Next, the memorandum discusses how the contracting officer, the TEC chair, and office of general counsel representatives reviewed MSIs initial OCI plan and identified various concerns with it. Additionally, the plan includes detailed assessments of the potential OCI risk associated with the tasks in the SOW. Thus, this type of OCI was to be addressed through the use of a firewall and nondisclosure agreements. In support of this claim, Social Impact points to a provision within the plan stating that MSIs [DELETED]. The contracting officer states that assigning responsibility to this group of personnel is appropriate because they are ideally suited to have the knowledge of the situational context [and] to review [SOW] and other taskers from USAID for possible OCIs. The first of these provisions states that the OCI analysis includes AR, Tab 40, Final MSI OCI Mitigation Plan, at 9. On the record here, we see no basis to question the contracting officers judgment. might be viewed as a way of currying favor for future work with MSI, such an approach risks exposure during [peer] reviews of the published evaluation with the accompanying damage to such a subcontractors reputation . As stated above, the general rule is to avoid strictly any conflict of interest or even the appearance of a conflict of interest . The agency has never identified the information that the contracting officer concluded was proprietary to [BI Incorporated] BI, and from a reading of the protest letter and its accompanying exhibits, it is not apparent or obvious to us what information the contracting officer identified as proprietary. Rather, the contracting officer states only that the alleged OCI on the part of STOP (rather than any possible violation of the PIA) has been referred to the agencys office of professional responsibility for investigation. Other than referral of STOPs alleged OCI to the agencys office of professional responsibility, the record is silent on the question of actions taken by the agency to investigate or resolve the possible PIA violations that are implied by the contracting officers representation.
Contracting officers are assigned several responsibilities in this area. We disagree that the agencys OCI mitigation plan effectively mitigated the impaired objectivity OCI identified by HPES. As set forth below, the record reflects that the contracting officer reasonably investigated and considered whether an OCI exists, and SMS has failed to identify hard facts indicating the existence or potential existence of the alleged conflict. The memorandum concludes by describing how, after two rounds of revisions to the plan, these concerns were addressed to the agencys satisfaction.  AR, Tab 40, Final MSI OCI Mitigation Plan, at 1-22. The contracting officer then points out other provisions in the OCI plan that identify other specific positions as being responsible for assessing potential OCIs. Here, the record shows that the contracting officer identified a conflict of interest issue, but undertook no actions to safeguard the procurement process. Thus, where, as here, the record establishes that a conflict or apparent conflict of interest exists, and the agency did not resolve the issue, to maintain the integrity of the procurement process, we will presume that the protester was prejudiced, unless the record includes clear evidence establishing the absence of prejudice. As noted above, the contracting officer represented to our Office that, upon reading STOPs letter of protest, she determined that it included the awardees proprietary information from its quote. However, there is nothing in the record to show that the contracting officer--or anyone else in the agency--ever actually investigated the possible PIA violations that could arise as a consequence of the alleged disclosure, or receipt, of BIs allegedly proprietary information.
Our Office has repeatedly denied biased ground rules OCI protests where the procuring agency has employed more than one contractor as a source for recommendations and input that eventually shaped the solicitation requirements. Alleged Unequal Access to Information OCI SMS also alleges that ASMR had unequal access to information. Even assuming that Accenture did have access to non-public information as a result of performing the NSD assessment study, SMS has failed to present any facts--hard or otherwise--that this information provided ASMR with a competitive advantage. ASMRs OCI mitigation plan thereafter included signed declarations from the affected Accenture employees, stating that they had not disclosed the information which they reviewed to any other Accenture or ASMR employees. Moreover, the staffing comparison is particularly unpersuasive given that DTS was but one of 19 members of DVU. The FAR requires contracting officials to 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 contractors objectivity. The situations in which OCIs 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. FAR 9.505-1, 9.505-2; Networking & Engg Techs., Inc., B-405062.4 et al., Sept. An impaired objectivity OCI arises where a firms ability to render impartial advice to the government would be undermined by the firm's competing interests. 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. As identified in the RFP, [the firm] Kepler was an identified support contractor and provided the Source Selection Training for the ESS II acquisition . In terms of the ESS II Source Selection, DISA did not use [the Evaluator Group senior strategist] or Evaluator Group as a consultant for this RFP, DISA had no discussion with Evaluator Group or [the senior strategist] regarding the ESS II solicitation, evaluation, training or any other aspect of the RFP. This presentation discussed overall storage technology trends at a very high level and did not focus on any specific storage solution or particular vendor.
See, e.g., American Artisan Prods., Inc., B-292559, B-292559.2, Oct. In support thereof, the protester argues that [t]here is no doubt that Accenture had access to non-public information as a result of performing the NSD assessment study, and that the information may have provided Accenture and ASMR a competitive advantage in the NSD procurement. SMS also contends the contracting officers OCI review was unreasonable for concluding that Accenture did not have access to privileged data that would provide it with a competitive advantage. Further, the contracting officer reasonably found that ASMR was diligent in adhering to and maintaining the established firewall, such that none of the work product/efforts under the prior NSD [assessment study] crossed over into any of ASM[R]s efforts to prepare and submit its proposal under the current RTEP . In addition, we note that the record does not establish that NES was aware that DTS was part of the DVU team during the task order competition. Comments at 7 (noting that NES did not know that DTS was part of the DVU team until after it reviewed a copy of DVUs protest). Vi ONs allegation concerns an IT storage consulting firm known as the Evaluator Group. Finally, Vi ON claims that in August, 2014--which coincides with the time the evaluation in this procurement took place--an Evaluator Group senior strategist gave a presentation to the agency regarding storage trends and technology. Based on these allegations, Vi ON argues The Evaluator Groups role advising DISA on its IT storage procurement needs may very well have resulted in biased ground rules and/or impaired objectivity. In the course of normal operations, DISA did utilize Evaluator Group to provide an approximately three hour presentation on storage trends and technology to the DISA Storage Engineering team and DISA field staff . The presentation and discussion did not involve the ESS II procurement or acquisition effort.
The contracting officer also reasonably gained input from other VA program and technical personnel regarding Accentures assessment study and whether that firm had any role in developing the NSD PWS requirements. The protester essentially expresses disagreement with the contracting officers judgments regarding the reasonableness of ASMRs mitigation strategy; such mere disagreement does not rise to the hard facts necessary to support a valid challenge. The Federal Acquisition Regulation (FAR) requires that contracting officials avoid, neutralize, or mitigate potential significant conflicts of interest to prevent an unfair competitive advantage or the existence of conflicting roles that might impair a contractors objectivity. The situations in which OCIs arise, as described in FAR subpart 9.5 and the decisions of our Office, can be broadly categorized into three groups: (1) impaired objectivity, (2) unequal access to information, and (3) biased ground rules. In this capacity, the NES employees participate in technical exchanges with DTS. According to DVU, NESs role on the OAA Tiger Team provided the company with access to DTSs proprietary data, including DTSs line item prices; personnel and labor mix; policies, processes, and standard work operating procedures; and specific methods and design and development approaches used to perform certain aspects of the contract. FAR 9.505(b), 9.505-4; Maden Techs., B‑298543.2, Oct. As the FAR makes clear, the concern regarding this category of OCI is that a firm may gain a competitive advantage based on its possession of [p]roprietary information that was obtained from a Government official without proper authorization, or [s]ource selection information . While the protester disagrees with the agencys conclusions with regard to whether the information could provide a competitive advantage, the protester has not demonstrated that the agencys conclusions are unreasonable.
Based on the gathered information, the contracting officer reasonably found that Accenture did not have the ability to shape the playing field of later procurements on behalf of ASMR, because Accenture had prepared a generic assessment regarding the NSD function--not the NSD requirements--and the Accenture study did not in fact become the basis of the agencys requirements. As SMS has not established that Accentures access to information, even if non-public, provided ASMR with any kind of competitive advantage in the later NSD competition, there is no basis to find that ASMR had an unequal access to information OCI. An impaired objectivity OCI arises where a firms ability to render impartial advice to the government would be undermined by the firms competing interests. DVU therefore asserts that NES gained an unfair competitive advantage in the current engineering support services competition because the firms knowledge of how DTS staffs and performs tasks under the ECMS contract provided NES with insight into how DVU would staff, perform, and price the work required under the RFQ here. For example, we find unavailing the protesters assertion that the two procurements were similar simply because they both involve a system certification process and achieving authority to operate (ATO) an IT system. On this record, we find that any slight similarity in the PWS requirements related to these two specific tasks does not establish that the agency erred in concluding that insight into DTSs processes under the ECMS effort would not have been useful to NES as it developed its quotation for the engineering support services RFQ.SMS Comments, June 20, 2016, at 19, citing Energy Sys. See Mc Connell Jones Lanier & Murphy, LLP, B-409681.3, B-409681.4, Oct. As relevant here, 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. FAR 9.505-4; Cyberdata Techs., Inc., B-411070 et al., May 1, 2015, 2015 CPD 150 at 6; Cap Rock Govt Solutions, Inc., et al., B-402490 et al., May 11, 2010, 2010 CPD 124 at 25. It is also my determination that were there to be a finding and/or appearance of a potential or actual conflict due to [Accentures] prior Order, ASM[R]s proposed mitigation plan, which I find acceptable, properly addresses such concerns and in my opinion mitigates any conflict concerns that may arise due to performance of the instant NSD re-compete effort should ASM[R] be selected for award. specifically designed to avoid any potential or actual future conflict concerns under subsequent NSD requirements. Social Impact contends that this information will give Tetra Tech a competitive advantage in future competitions for USAID contracts, thereby creating an unequal access to information OCI. As stated previously, the contracting officer reviewed and approved an OCI plan submitted by MSI. Social Impact raises numerous arguments as to why the firm believes the contracting officers acceptance of MSIs OCI plan was unreasonable. The protester should submit its certified claim for costs, detailing the time expended and costs incurred, directly to the contracting agency within 60 days after receipt of this decision. It is well settled, however, 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; further, 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. 30, 1985, 85-2 CPD 559 at 3 (development of diagnostic software for equipment is similar to incumbents advantage and does not create preferential treatment or other unfair action). The identification of conflicts of interest are fact-specific inquiries that require the exercise of considerable discretion. As explained below, we find reasonable the agencys ultimate conclusion, even though the record suggests that NES had access to DTSs proprietary information.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. [Accenture], ASM[R]s parent company, carried out advanced measures under its stated OCI Mitigation Plan . ASM[R] itself was diligent in adhering to and maintaining the established firewall between itself and its parent company while preparing its response for the current NSD re-compete. Based on our review, we find that the contracting officer reasonably concluded that ASMR did not have a biased ground rules OCI. to evaluate the work of its ultimate parent company, thus creating an impaired objectivity OCI. Social Impact also argues that MSI, through its performance of the contract, will obtain proprietary and cost-related information of Tetra Techs competitors in Indonesia and the region. We have considered all of Social Impacts arguments, and we conclude, based on the record, that none has merit. At the outset, however, we observe that our Office reviews an agencys OCI investigation for reasonableness, 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. Moreover, while Benefit Recovery no doubt retains some advantage as a result of its experience, we note that Signature Performance also had experience with the underlying commercial software and received some training on the use of ABACUS. Net Star-1 Govt Consulting, Inc., supra; see Axiom Res. With regard to the DTS information, the record demonstrates that during the course of performing the OAA contract NES employees were given access to a roster of the DTS personnel assigned to the ECMS project team along with the employees specialties and roles, as well as an organizational chart depicting the team. N, Email from OAA Official to NES Tiger Team Member, Feb. O, DTS ECMS Project Team Spreadsheet, at 1; and exh. As a further response to Social Impacts claim, the contracting officer describes how she reviewed the plan at length, and was satisfied that the specific measures within it would adequately neutralize or mitigate potential unequal access to information OCIs. As relevant here, a biased ground rules OCI arises where a firm, as part of its performance of a government contract, has in some sense set the ground rules for the competition for another government contract. In these cases, the primary concern is that the firm could skew the competition, whether intentionally or not, in favor of itself. Conflicts of interest may also arise in the context of individual contractor employees who assist the government during procurements, and are typically called PCIs. Request for Dismissal, Contracting Officers Statement, at 4; Contracting Officers Statement at 9. B-412866: Jul 14, 2016)The Federal Acquisition Regulation (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 contractors objectivity. The situations in which OCIs arise, as described in FAR subpart 9.5 and the decisions of our Office, can be broadly categorized into three groups: (1) biased ground rules; (2) unequal access to information; and (3) impaired objectivity. FAR 9.505(b); Cyberdata Techs., Inc., B-411070 et al., May 1, 2015, 2015 CPD 150 at 6. 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. The advisor began working for Old SAIC in 2002, and began assisting with that firms support of the Armys AIE requirements in 2009. These activities included, at a minimum, preparation of the solicitation and the governments estimate, as well as participation as a subject matter expert advisor throughout the source selection process. In other words, the contracting officer views a subcontractors interest in maintaining a good reputation to promote future work within the wider business community as an adequate check against the possibility that a subcontractor will skew evaluation reports--and likely tarnish its reputation--in the hope that a single client--MSI--would retain it for future work. Further, and as discussed above, the record reflects that the contracting officer considered how the OCI plan established procedures to identify when an impaired objectivity OCI might arise through the evaluation work, and how the plan ensured that the conflicted firm‑‑MSI--would not perform evaluations in those instances. Under these circumstances, we see no basis to question the agencys determination regarding the mitigation of potential impaired objectivity OCIs. As discussed above, the plan addresses this type of OCI through the use of firewalls and nondisclosure agreements. See AR, Tab 40, Final MSI OCI Mitigation Plan, at 8-13. Examples of such unequal access to information resulting in a competitive advantage include situations where a contractor competing for an award possesses [p]roprietary information that was obtained from a Government official without proper authorization or [s]ource selection information . Specifically, Millennium fails to explain how Systeks proposal to utilize an electronic system that would unify VAs data collection tools (e.g., Excel, Share Point, BTT) implicates nonpublic information or reflected an improper competitive advantage in the competition especially where the VA provided offerors with information and documents in the RFQ about its acquisition systems and processes. Compare Request for Dismissal, Contracting Officers Statement, at 3, with E-Mail from the Contracting Officer to the Program Manager and Chairman of the Technical Evaluation Committee, Mar. While we agree with the contracting officers conclusion that the program managers relationship with STOP should have led to her recusal from this procurement, the impact of her ongoing participation in the procurement is not clear.