If you are protesting a Federal contract award on the basis of an Organizational Conflict of Interest, the GAO has a word of advice: Don’t Hold Back!!
Organizational Conflicts of Interest (or OCIs) that provide an unfair competitive advantages on a Federal procurements are prohibited under the FAR and can lead to exclusion from contracting opportunities, contract termination, or even suspension/debarment from performing future Federal work. But what do you do if you think your competition is unfairly benefitting from an insider connection?
In a recent opinion, the GAO denied a protest based on the absence of concrete evidence to establish the claimed OCI. In the words of the GAO: “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 GAO offered some examples of the types of facts that contractors must allege in order to avoid dismissal and, eventually, prove the OCI during a protest. Specifically, the protest must identify evidence that the conflict of interest:
· Resulted in biased ground rules for the procurement (for example, evidence that the competition was involved in crafting provisions of the solicitation that turned in its favor; or
· Resulted in actual impaired objectivity during the award process.
In other words, the goal should be to identify the OCI as specifically as possible and to provide detailed examples of how it affected the agency’s decision making process.
From a larger perspective, the GAO’s insights can apply to a wide range of subjects in the protest world. GAO protests unfold quickly and often offer little in the way of the traditional “discovery” that takes place during court proceedings.
When drafting a protest, focus on the error and the resulting prejudice, providing specific examples whenever possible. There is no reason to hold back evidence or wait to play a trump card. The ace up your sleeve may end up being a card that you never get to play.