Government Contracts CO’s Organizational Conflict of Interest Findings Unsupported
Friday, February 22, 2019

CO’s Organizational Conflict of Interest Findings Unsupported

By Government Contracts Editorial Staff

A protest of a task order award for charter schools program support was sustained because the government’s organizational conflict of interest analysis was unreasonable. The protester argued the awardee’s subcontractor, which was performing a related monitoring and data collection contract, had an impaired objectivity OCI. That contract required the subcontractor to prepare monitoring reports with written recommendations for technical assistance to particular grantees, while the protested task order called for the awardee to provide individualized technical assistance to grantees addressing the findings identified in the subcontractor’s monitoring reports. According to the protester, the subcontractor could benefit itself financially by both recommending grantees for technical assistance under the monitoring and data collection contract and providing that assistance under the awarded task order. The contracting officer’s OCI analysis found the government, not the subcontractor, made all relevant final determinations under the monitoring contract, and concluded the subcontractor lacked authority to funnel work to itself under the new task order.

Improper Legal Standard. The Comptroller General explained “[i]t is well settled that, where, as here, a contractor is expected to offer its input to the [government], the contractor may have an OCI, even where the [government] is not relying solely on the contractor’s input, and where the government retains the ultimate decision-making authority.” The subcontractor had substantial involvement in the monitoring processes under its contract that would lead, eventually, to technical assistance services being provided to grantees under the awarded task order. The CO’s assertion that the subcontractor’s lack of final authority mitigated the subcontractor’s impaired objectivity OCI was unsupported. Since the CO’s OCI analysis applied an improper legal standard to the facts of the case, there was no basis for concluding the finding of no OCI was reasonable. The Comptroller General recommended the government conduct and adequately document a new OCI analysis. (Safal Partners, Inc., 34 CGEN ¶116,262).

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